Wrongful Termination: Retaliation & Whistleblowing

If you were fired for exercising your legal rights or complaining of illegal activity, you may have a case against your employer.

By , J.D. · UC Berkeley School of Law

Were you fired from your job because you complained about illegal behavior or asserted your legal rights? If so, you may have a wrongful termination claim for retaliation or whistleblowing.

Many employment laws prohibit employers from firing employees for exercising their rights under those laws. Employees are also protected for whistleblowing: reporting that the company has broken laws unrelated to workers' rights (such as laws regulating consumer protection, product safety, government contracts, or shareholder fraud).

This article explains some of the laws that protect you from retaliation or protect you as a whistleblower, as well as how to make a claim for retaliation or whistleblowing.

What Is Retaliation?

An employer retaliates against an employee when it takes action to punish the employee for exercising his or her workplace rights or for reporting a legal violation of workplace laws.

Many employment laws are enforced by employees who come forward to report a problem, such as harassment, failure to pay overtime, or safety hazards. Although there are government agencies responsible for enforcing these laws, these agencies typically don't conduct random workplace audits looking for violations. Instead, they rely on employee complaints to learn of potential violations.

Even then, enforcement agencies almost never sue employers for breaking the law. Although an agency might investigate, impose a fine, or even make a finding that an employer has likely violated the law, the employee must typically bring a lawsuit to vindicate his or her rights.

Here are some of the most common laws protecting workers from retaliation:

  • Workplace harassment and discrimination. You may not be fired for making a complaint (whether to your own HR department or to the Equal Employment Opportunity Commission) about harassment or discrimination in the workplace; for participating in an investigation of these issues; or for exercising your rights under these laws (by, for example, requesting a reasonable accommodation for your disability or your religious practices).
  • Wage and hour laws. Your employer may not fire you for complaining, whether internally or to the Department of Labor, that your employer has failed to pay the minimum wage, failed to pay overtime, denied legally required breaks, or illegally kept a portion of your tips, for example.
  • Leave laws. You can't be fired for exercising your right to take leave under the Family and Medical Leave Act or similar state laws, to take workers' compensation leave, to take time off to vote or serve on a jury, to take paid sick leave (if required by state or local law), or to take any other legally protected time off work.
  • Health and safety laws. You may not be fired for reporting, whether within your company or to the Occupational Safety and Health Administration, health and safety violations at your workplace.
  • Worker's compensation laws. Your employer may not fire or otherwise penalize you for filing a workers' compensation claim for an on-the-job injury.

What Is Whistleblowing?

Whistleblowing occurs when an employee reports illegal conduct at work that is not related to workplace rights. For example, you are a whistleblower if you report that your company is cooking the books; engaging in shareholder fraud; producing faulty, dangerous, or mislabeled products; or lying on its tax returns.

An employer may not fire an employee for blowing the whistle on certain illegal activity. Some laws that prohibit certain types of unethical or illegal corporate behavior explicitly protect employee whistleblowers. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes whistleblower protections for employees who report financial irregularities and shareholder fraud.

Some states also have laws that allow employees to sue their employers for wrongful termination in violation of "public policy." These types of claims may include protection from termination for a variety of reasons that the public would find morally wrong.

However, state laws vary as to the specific type of activity that is protected. For example, some states allow public policy claims only if a state law explicitly provides whistleblower protection (for example, a state law protecting nurses who report unsafe conditions at hospitals).

Other states allow public policy claims whenever an employee reports a violation of a law that was intended to protect the public. You'll need to talk to an experienced employment lawyer to find out whether you can bring this type of claim in your state for the legal violation you reported.

If you are fired for refusing to engage in illegal behavior, you may also have a wrongful termination claim. For example, if you are fired because you refuse to lie to a government auditor or file a false corporate tax return, you may be able to sue for wrongful termination in violation of public policy.

If You Were Fired for Whistleblowing or Retaliation

If your employer fired you for reporting illegal behavior or exercising your legal rights, you may be able to sue for wrongful termination. Below, we explain how to pursue your claim.

Meeting With a Lawyer

Retaliation and whistleblowing claims can be legally complicated. The rules for bringing these claims may vary from state to state, as explained above. An experienced lawyer can help you determine whether you have a claim based on a specific statute or a violation of public policy.

Prepare for your first meeting by creating a timeline of events: what led up to your complaint or your report, when you complained or tried to exercise your rights, and what happened as a result.

To prove retaliation or whistleblowing, you must show that you were fired because of your complaint or report. Timing is crucial: The less time between your complaint and your employer's negative action against you, the stronger your claim is. You'll also have to show that the person who decided to fire you knew of your protected activities.

A lawyer will review all of the facts, explain your potential claims, and estimate how much your claims might be worth. A lawyer can also help you decide on the best strategy to vindicate your rights, whether through negotiating with your employer, filing a complaint with a government agency, or going to court.

You may be concerned about how you will pay a lawyer to represent you. Depending on your claims, a lawyer may be willing to take your case on a contingency fee basis. This means the lawyer is paid only if you win, out of the money you receive through a court award or a settlement with your employer.

Some retaliation statutes include an attorneys' fees provision, requiring a losing employer to pay the winning employee's legal fees. You should receive a written explanation of how your lawyer will charge fees at the outset of your working relationship.

Filing a Retaliation Complaint

For certain retaliation claims, you may have to file a complaint with a government agency before you go to court. For example, if you were fired for complaining of workplace harassment or discrimination, you will need to first file a charge of discrimination with the Equal Employment Opportunity Commission.

If you want to sue for wrongful termination in violation of the Sarbanes-Oxley whistleblower protections, you must first file a complaint with the Occupational Safety and Health Administration.

Not all retaliation claims are subject to this rule, however. And, for some types of retaliation claims, you may—but are not required to—file an administrative charge before going to court. Your lawyer can help you figure out the requirements for your particular claim in your state.

Damages Available for Retaliation and Whistleblowing Claims

How much you might collect if you win a retaliation or whistleblowing case depends on the basis and strength of your claims. For most wrongful termination cases, a winning employee can ask for:

  • back pay: wages and benefits you lost as a result of being wrongfully fired
  • reinstatement or front pay: you can ask the court to give you back your job or, if that's not feasible, to award you the wages you will lose going forward until you find a new job
  • out-of-pocket losses: any expenses you had to pay as a result of being fired, such as the cost of searching for a new job, and
  • attorneys' fees and court costs.

In some cases, you might also be entitled to damages for "pain and suffering," for the emotional and physical harm caused by your employer's actions. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available.

And, in some whistleblower cases, you might be eligible for a fee or bounty for protecting the public from wrongdoing. (This might be a set amount per violation, a percentage of the total sanction against the employer, or some other amount determined by the statute or the court.)Your lawyer can explain how much you might expect to win in your case.

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