What to Do If You’ve Been Retaliated Against at Work

Were you trying to do the right thing at work and speak up against an unlawful practice like upcoding or Medicare fraud or securities fraud and in turn suffered retaliation? If so, you may have protections if and only if you followed the proper statutory procedures in making a complaint. Particular statutes, such as the False Claims Act, Sarbanes-Oxley Act (SEC whistleblower), among other statutes have mechanisms that prohibit retaliation and call for damages if someone is retaliated against after invoking the statutory procedures correctly.

However, if your report doesn’t squarely fit into a statute that protects you, the employer may be within its rights to take action against you! Seems counter-intuitive when you believe in your heart you were doing the right thing, but either you’re protected by a law or you’re not. To know which statutes may protect your rights, you should consult with a whistleblower law firm early and often so you don’t make a mistake that winds up with you fired and nothing to show for it.

What is Retaliation in the Workplace?

Retaliation occurs when an employer improperly punishes an employee when the employee has made a complaint about something in the work environment. It can happen overtly in the form of salary reductions or a firing, or it can occur more discreetly in the form of poor performance reviews or unwarranted scrutiny from a supervisor.

The retaliation must negatively impact your employment. Even if it does impact your employment the employer may lawfully be able to retaliate unless there is a statutory protection. Consider the following two situations. In the first, the employer provides Vanilla, Chocolate and Coffee Ice Cream for free every Friday during the summer. An employee complains that he doesn’t like any of the flavors and is insisting on Bacon Maple Crunch and that it’s unfair that the company doesn’t provide that as well. The employer retaliates and fires the employee for the request. Since there is no specific statute that would protect the individual from retaliation and if there’s no labor or employment contracts stating otherwise, the firing in these circumstances would be unlawful, albeit most people would perceive the conduct as unfair.

However, under the law just as an employee is free to leave and look for new work, the employer is free to let staff go unless it’s prohibited by a statute. A slight permutation of that fact pattern, is if the employee complains that she’s allergic to the free flavors provided, then arguably (but probably losing at the end of the day) they could argue disability discrimination and retaliation, but since there’s no fundamental right to ice cream at work, despite what everyone always seems to demand, once again this is probably a losing argument.

In contrast, let’s say a health care provider is offering gift cards to its patients in exchange for referrals of patients that include Medicare patients, and the employee complains that the conduct appears to be a violation of the Anti-Kickback Statute (AKS) and the False Claims Act and the company terminates the individual shortly thereafter for not being a team player.

That would probably be actionable retaliation under the law prohibited by the False Claims Act, since the individual raised a valid concern under the False Claims Act and there is a strong temporal proximity where one can infer retaliation if the firing happened shortly after raising the concern and the reason for the firing as not being a team player, which translates to not going along with the suspected fraud.

It is important to note that in some instances even if it turns out the complained about conduct that the company was engaging in was legal, it still may be actionable as retaliation if the complainant had a good faith belief that was objectively reasonable that it was illegal. These situations are highly nuanced which is why its best to seek counsel before lodging complaints to make sure your rights are protected.

What Laws Can Protect Me from Retaliation?

Federally, it is illegal to retaliate against employees who report Medicare Fraud, Medicaid Fraud, Defense Contractor Fraud, Pharmaceutical Fraud implicating federal funds, securities fraud, commodities fraud, or discrimination or sexual harassment claims or report illegal activity at work. Employers who take such actions against their employees may be subject to legal action for retaliation. As the employee, you may be entitled to back pay, punitive damages, and attorney’s fees and costs. There are a few major statutes that have protections for retaliation–which one you may be able to file your claim under depends on your situation and the type of retaliation you may have experienced:

• The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards pertaining to employees in the private sector and in federal, state, and local government. It also protects employees who have been retaliated against for bringing forward issues under this statute.
• The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave—and protects employees who are retaliated against for legally taking off time under the FMLA.
• The Employee Polygraph Protection Act (EPPA) generally prevents employers engaged in interstate commerce from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions.
• The False Claims Act (FCA), which is typically used to report illegal activity or fraud related to federal funds also has whistleblower protections against retaliation–meaning it is illegal for employers to fire or otherwise retaliate against employees who report claims under the FCA.
• The Dodd-Frank Act allows whistleblowers who report SEC or CFTC violations to take legal action against employers that retaliate against them. This retaliation may include, but is not limited to: discharging, demoting, suspending, harassing, or in any way discriminating against an employee in the terms and conditions of employment who has reported conduct to the Commission that the employee reasonably believed violated the federal securities laws.
• The Sarbanes-Oxley Act (SOX) oversees corporate governance, auditing, financial reporting, and more, and has robust protections against whistleblower retaliation that can help whistleblowers get reinstatement, back pay, and compensation for any special damages.
• The Foreign Corrupt Practices Act (FCPA) focuses on anti-bribery and proper accounting practices in U.S. or foreign public companies listed on the stock exchange. While the FCPA does not have its own explicit whistleblower retaliation provisions, whistleblowers may find legal shelter under the Dodd-Frank or SOX Acts. Unique cases like these are a prime example of why you should always consult an attorney before blowing the whistle on wrongdoing or allege retaliation.

Certain states can have varying degrees of friendliness to employee rights and may have stricter requirements for filing a retaliation claim under their own state statutes. If you believe you have been retaliated against, it is best to consult with an employment attorney to discuss your rights and potential courses of action to prepare the strongest case possible.

Consult With an Employment Lawyer

As with all legal claims, it is best to consult your potential retaliation claim with an employment attorney. A seasoned employment law firm will be able to help evaluate the guide you. It is best to consult an attorney before taking any action—though that doesn’t mean you should do nothing either. If you believe you have been retaliated against, or are experiencing retaliation, it is a good idea to keep a paper trail of all incidents, if any you have documented (emails, notes from meetings, etc.). Documenting meetings, communications, employee conduct, and more can be beneficial in your case.

It can also help to provide communications from your employer or coworkers that show positive feedback before whatever triggered the retaliation. Whatever you have, possessing evidence to back up your claims can help an attorney evaluate if or how they can assist you. Gathering evidence, the right way is critical too. Don’t access documents that you legally are not entitled to or else it may come back to haunt you.

While being retaliated against is undeniably a frustrating and difficult experience, there are many protections for employees who experience it if they took the time to make sure they are protected before lodging an internal complaint or if they are in fact protected due to a statutory shield. Consult a retaliation and employment lawyer today to learn how you might be able to protect your rights as an employee.