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).
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:
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 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.
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.
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.
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:
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.