The Rights of a Whistleblower

If you are a public employee, and you believe that your employer may have broken the law, or is otherwise in violation of a rule or regulation, that puts the public health or safety at risk, you should feel comfortable reporting it without fear of any backlash from your employer (from a legal standpoint, at least). According to Massachusetts law, these “whistleblowing” actions should always keep the employee who is reporting the violation protected from termination, suspension, demotion, and any adverse employment action being taken by the employer in response.

In addition to protection from their state government, whistleblowers are protected through the federal government, which has several safeguards in place to ensure that a whistleblower’s future at the company is not at risk, despite reporting an employer’s violation of the law. The United States Department of Labor, through the Occupational Safety and Health Administration (OSHA), has what is known as “The Whistleblower Protection Program”. This is designed to operate as a guide for anyone engaging or considering engaging in whistleblowing activity to know how to do everything from start to finish. This includes the initial step of actually filing the complaint (or understanding what constitutes a legitimate complaint in the first place), to understanding how their complaint may affect their employment status. The program provides a more detailed and specific list of what actually constitutes “adverse action” against a whistleblower.

If you report an employer’s violation, or are considering doing so, keep an eye out for any of the following actions, which, according to the government, are illegal to take against a whistleblower:

Firing or laying off;
Blacklisting;
Demoting;
Denying overtime or promotion;
Disciplining;
Denial of benefits;
Failure to hire or rehire;
Intimidation/harassment;
Making threats;
Reassignment affecting prospects for promotion; or
Reducing pay or hours.

Also, the National Whistleblower Center has a great deal of information on their website regarding how whistleblowers should be protected. However, nationwide, there seems to be a debate (or at least a lack of consensus) on what should actually constitute “protected whistleblower activity” in terms of whether its definition should be more broad an inclusive, or more narrow. Therefore, it is important to understand where your state stands on this protected activity (in Massachusetts, above, it appears to be relatively broad, as the “adverse actions” are not as specific as the list provided by the Department of Labor, and reproduced here).

OSHA has provided a “fact sheet” for whistleblowers, as a guide to when and how to file a complaint, and generally speaking, what their rights are for doing so. It further explains how to file a complaint against an employer in the event that any retaliation or otherwise adverse action is taken against the whistleblower. OSHA explains that a whistleblower is able to contact OSHA with any complaint against their employer for retaliation if their actions fall under the “protected whistleblower activity” regarding:

workplace safety or health, asbestos in schools, cargo containers, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, motor vehicle safety, and securities laws.

In addition, OSHA’s fact sheet contains a guide for how long a whistleblower has to report said retaliation based on which law they believe their employer violated. These range from as little as 30 days, to a maximum of 180 days.

Another thing to keep in mind, or at least be cognizant of, if you have engaged or are considering engaging in whistleblowing activity, is what exactly OSHA or the government will look for in their investigations following a complaint. In other words, what legally constitutes retaliation by an employer against “protected whistleblower activity”?

According to OSHA, it must be shown that:

The employee engaged in protected activity;
The employer knew about or suspected the protected activity;
The employer took an adverse action; and
The protected activity motivated or contributed to the adverse reaction.

Of course, there is always the concern that employers will find a way to “cover their tracks” and disguise any adverse action with a seemingly legitimate excuse for otherwise retaliatory behavior (for example, finding other minor reasons to claim that an employee is not meeting certain standards, even though it is uncharacteristic for the employee and the negative feedback suspiciously occurs after whistleblowing activity). These types of actions may make the claim against the employer harder to prove as retaliation. Therefore, it is important, if you have or are planning to engage in whistleblowing activity, to gather as much information as possible throughout the process. Consider compiling information on your work performance prior to filing a complaint, any information showing that the employer is aware of your complaint against them, and what actions they took immediately afterward – paying close attention to anything showing motive to punish this protected whistleblowing activity.

According to Massachusetts and federal laws, whistleblowers should be allowed to take steps to protect public health and safety when they believe it has been put at risk by their employer’s actions. It is imperative that (potential) whistleblowers understand that, despite the fear of retaliation, they and their actions are protected. If you believe you have information related your employer committing fraud, give us a call for a confidential case consultation. 617-492-3000.

Sources:

Massachusetts Executive Office of Public Safety and Security, Whistleblower/Fraud, Waste and Abuse Information, MASS.GOV, http://www.mass.gov/eopss/whistleblowerfraud-waste-and-abuse-information.html.
OSHA, The Whistleblower Protection Programs, United States Department of Labor, https://www.whistleblowers.gov/know_your_rights.html.
Know Your Rights FAQ, National Whistleblower Center, http://www.whistleblowers.org/resources/faq-page/know-your-rights-faq.
OSHA Fact Sheet, https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf.