What is Wrongful Termination?
If you were terminated from your job for raising concerns about illegal conduct or standing up for your legal entitlements, you could potentially file a wrongful termination claim for retaliation or whistleblowing. Various employment laws bar employers from firing employees for exercising their rights under those laws, and whistleblowers are also safeguarded when reporting the company’s breach of laws unrelated to workers’ rights, such as those regulating consumer protection, product safety, government contracts, or shareholder fraud.
This article outlines some of the laws that shield you from retaliation or protect you as a whistleblower and offers guidance on how to file a retaliation or whistleblowing claim.
What is Retaliation?
Retaliation occurs when an employer takes action to punish an employee for exercising their workplace rights or reporting a violation of workplace laws. Many employees report problems such as harassment, failure to pay overtime, or safety hazards to government agencies responsible for enforcing these laws. However, these agencies typically rely on employee complaints to learn of potential violations and almost never sue employers for breaking the law. Therefore, it’s often up to the employee to bring a lawsuit to protect their rights.
Below are some of the laws that protect workers from retaliation:
The following are laws that protect employees from being fired or retaliated against for exercising their rights:
- Harassment and discrimination laws: An employee cannot be fired for reporting workplace harassment or discrimination to their HR department or the Equal Employment Opportunity Commission. They also cannot be fired for participating in an investigation of such issues or for requesting reasonable accommodations for their disability or religious practices.
- Wage and hour laws: Employees cannot be fired for making complaints, either internally or to the Department of Labor, about their employer’s failure to comply with minimum wage laws, overtime pay, legally required breaks, or tip sharing laws.
- Leave laws: An employer cannot fire an employee for taking legally protected time off work, such as for family and medical leave, workers’ compensation leave, voting or serving on a jury, or taking sick leave (if required by state or local law).
- Health and safety laws: Employees are protected from being fired for reporting health and safety violations in their workplace, whether to their company or to the Occupational Safety and Health Administration.
- Worker’s compensation laws: Employers cannot fire or penalize employees for filing workers’ compensation claims for on-the-job injuries
What Is Whistleblowing?
Whistleblowing occurs when an employee reports illegal conduct at work that is unrelated to workplace rights, such as corporate financial wrongdoing, producing dangerous or mislabeled products, or lying on tax returns. An employer is prohibited from firing an employee for blowing the whistle on certain illegal activities, and some laws even explicitly protect employee whistleblowers. For instance, the Sarbanes-Oxley Act provides whistleblower protections for employees who report financial irregularities and shareholder fraud to safeguard investors from corporate financial wrongdoing. Additionally, some states have laws that allow employees to sue their employers for wrongful termination in violation of public policy, which protects employees from termination for reasons that the public would find morally wrong. However, the specific type of activity that is protected by these laws varies from state to state. Therefore, it is advisable to consult an experienced employment lawyer to determine whether you can bring a public policy 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 terminated because you refused 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 you have been fired for reporting illegal behavior or exercising your legal rights, you may have grounds to sue for wrongful termination. To pursue your claim, it is important to meet with an experienced lawyer who can help you determine whether you have a claim based on a specific statute or a violation of public policy. It is helpful to prepare for your first meeting with a timeline of events, detailing what led up to your complaint or report, when you complained or tried to exercise your rights, and what happened as a result.
To prove retaliation or whistleblowing, you will need to show that you were fired because of your complaint or report. Timing is crucial, and the less time between your complaint and your employer’s negative action against you, the stronger your claim will be. It is also necessary to demonstrate that the person who decided to fire you knew of your protected activities.
Your lawyer will review all the facts, explain your potential claims, and estimate how much your claims might be worth. They can also help you determine the best strategy to vindicate your rights, whether through negotiating with your employer, filing a complaint with a government agency, or going to court.
It is important to discuss payment with your lawyer, as depending on your claims, they 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.
For certain retaliation claims, you may need to file a complaint with a government agency before going 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. Your lawyer can help you figure out the requirements for your particular claim in your state, as not all retaliation claims are subject to this rule, and for some types of retaliation claims, you may file an administrative charge before going to court.
Damages Available for Retaliation and Whistleblowing Claims
The amount of compensation you may receive if you win a retaliation or whistleblowing case will depend on the strength and basis of your claims. If you are successful in a wrongful termination case, you may be entitled to the following:
- Back pay: This includes the wages and benefits that you lost as a result of being wrongfully terminated.
- Reinstatement or front pay: You can request that the court either reinstate you to your former position or award you wages until you find a new job.
- Out-of-pocket losses: Any expenses you incurred as a result of your termination, such as job search costs, can be included in your claim.
- Attorneys’ fees and court costs.
In some cases, you may also be able to recover damages for “pain and suffering,” which compensates for the emotional and physical harm caused by your employer’s actions. Punitive damages, which are intended to punish an employer for particularly egregious misconduct, may also be available. Additionally, in certain whistleblower cases, you may be eligible for a fee or bounty for protecting the public from wrongdoing. This may be a set amount per violation, a percentage of the total sanction against the employer, or a different amount determined by the statute or the court. Your attorney can provide information on the potential compensation you may receive in your specific case.
ENTRUST YOUR CASE TO E&L, LLP
E&L, LLP, has cultivated attorneys who are prepared to represent plaintiffs in complex wrongful termination and whistleblower retaliation matters. If you have been fired, let us guide you; contact E&L, LLP, at 213-213-0000, for a free case evaluation and consultation.
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