Wrongfully Terminated Due to Retaliation & Whistleblowing in New York

Employees may not be fired for exercising their workplace rights or reporting illegal workplace activity.

Were you fired from your New York job for complaining about illegal behavior or exercising your legal rights? If so, you may have a wrongful termination claim for retaliation or whistleblowing. The same New York and federal laws that provide basic workplace protections also prohibit employers from retaliating against employees who exercise their rights under these laws. In some circumstances, employees are also protected for whistleblowing: reporting that the company has broken laws unrelated to workers’ rights (such as laws regulating environmental protections or product safety).

Understanding Retaliation

An employer engages in retaliation when it fires or takes other adverse action against an employee because the employee has exercised a legal right or complained of illegal behavior. Many employment laws—including those that regulate workplace safety, wages and hours, and discrimination—include a prohibition on retaliation.

Typically, a government agency (such as the Equal Employment Opportunity Commission or the Occupational Safety and Health Administration) has the legal authority to enforce the law. But these agencies typically don’t conduct random workplace audits looking for violations. Instead, they rely on employee complaints that an employer has broken the law. This is why retaliation is prohibited: If employers were free to fire employees who complained, employees would stop reporting violations and these important laws would go unenforced.

Once an agency gets a complaint from an employee, it might ask the employer to respond, investigate the claims, impose a fine, or even make an administrative finding that an employer has likely violated the law. However, the agency almost never files a lawsuit to vindicate the employee’s rights. Instead, it’s up to the employee to go to court and enforce the law.

Here are some laws that include a provision against retaliation:

  • Discrimination and harassment laws.  Your employer may not fire or otherwise retaliate against you for complaining—whether to your employer, to the Equal Employment Opportunity Commission, or to the New York Division of Human Rights—about discrimination prohibited by federal or New York law. You are also protected if you give testimony, talk to an investigator, or participate in some other way in an internal or administrative proceeding regarding a discrimination or harassment complaint.
  • Wage and hour laws.  You may not be fired for complaining, whether within your company or to the federal or New York Department of Labor, that your employer has violated the Fair Labor Standards Act or New York’s wage and hour laws. For example, you are protected if you complain about your employer’s failure to pay minimum wage or overtime as required by law.
  • Off-duty conduct laws.  Under New York law, your employer may not fire you for certain lawful activities you engage in outside of work, including your political activities, use of legal products (such as tobacco), or recreational activities.
  • Leave laws.  You can’t be fired for exercising your right to take time off work to serve on a jury, vote, use family or medical leave, or use worker’s comp leave (among other things). (For more information, see  New York Family and Medical Leave.)
  • 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.

Understanding Whistleblowing

Whistleblowing occurs when an employee reports illegal conduct at work that is not directly related to workplace rights. For example, if you report that your company is filing false tax returns or lying to government auditors, you are a whistleblower.

An employer may not fire an employee for blowing the whistle on certain types of misconduct. Some federal 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.

New York law also protects whistleblowers. Employers may not fire an employee for objecting to, or refusing to participate in, any practice, policy, or activity of your employer that violates a law, rule, or regulation. You also may not be fired for testifying or otherwise providing information to a government agency, or making or threatening to make a written disclosure, under oath, to such an agency, about your employer’s violation of a law, rule, or regulation. However, before making such a written disclosure, you must inform your employer of the violation and wait a reasonable amount of time for the employer to fix the situation. The legal violation of which you complain must be serious: Only violations that create a substantial and specific danger to public health or safety, or that constitute health care fraud, are covered.

If You Were Fired for Whistleblowing or Retaliation

If your New York employer fired you for reporting illegal behavior or exercising your legal rights, you may have a wrongful termination claim for retaliation or whistleblowing. Because these cases are complex, you should start by talking to an experienced employment lawyer about whether and how to proceed.

Consult With a Lawyer

As you can see, a number of state and federal laws protect employees who assert their rights or complain about misconduct. An experienced lawyer can help you figure out your options and how best to vindicate your rights.

Before you meet with a lawyer, put together a detailed timeline that includes: the events underlying your complaint or your report, when you complained or tried to exercise your rights, whom you spoke to (and when), and what happened as a result. To prove retaliation or whistleblowing, you must show that your employer fired you because of your complaint or report. Timing is very important: The less time that passes between your complaint or attempt to exercise your rights and your employer’s action against you, the stronger your claim is. You will also have to prove that the person who fired you (or made the decision to end your employment) knew of your complaint or report.

If you’re still out of work, you may be concerned about how you’ll come up with the money to pay a lawyer. Depending on your claims, however, a lawyer may be willing to take your case on a contingency fee basis. In a contingency fee arrangement, the lawyer is paid only if you win, by taking a percentage of the money you receive. Also, some retaliation statutes allow the court to award attorneys' fees, which means your employer will have to pay an extra amount for your legal fees if you win.

Filing a Government Charge

For certain retaliation claims, you may have to file a complaint with a government agency before you can go to court. For example, you may not file a lawsuit alleging retaliation for complaining of harassment or discrimination under federal law until you 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. New York adds another wrinkle: You may file a retaliation claim for complaining about discrimination or harassment with the New York Division on Human Rights, but this precludes you from filing a lawsuit based on these claims. Your lawyer can help you figure out the requirements for your particular claim in your state, as well as the best strategy for proceeding if you have multiple options.

Damages Available for Retaliation and Whistleblowing Claims

The monetary damages available if you win a retaliation or whistleblowing case depend on the law underlying your claims and how strong those claims are. For most wrongful termination cases, an 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
  • any expenses you had to pay out of pocket 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 emotional distress damages, awarded to compensate you for the pain and suffering caused by your termination. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available.

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 what types of damages might be available in your case.

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