Whistleblower Complaint Against You.

Upon receiving a whistleblower complaint, employers should promptly begin conducting an investigation into the facts at hand. Even before it is clear whether there are legitimate issues to be investigated, formulating an investigation plan is a crucial first step in defending against a whistleblower’s allegations. Once an employer has determined that an investigation is necessary, it will need to ensure that the investigation is conducted appropriately, documented, and thoroughly. This includes:

• Conducting an independent and well-documented investigation. When an employee is the subject of a whistleblower complaint, this means making sure that the person tasked with investigating is not biased in favor of that employee. Again, it also means having an evidentiary trail so that you can defend your actions as necessary and appropriate if necessary.
• Preserving relevant evidence. Upon receiving a whistleblower complaint, employers should also take steps to preserve relevant evidence. Even if you intend to keep the investigation confidential, it is still important to take steps to make sure that documents, emails, recordings, and other evidence are not accidentally deleted, overwritten, or otherwise destroyed.
• Protecting the reporter from retaliation. Until investigations are complete, you should take steps to make sure that the employee who made the complaint is protected from retaliation. While this might seem obvious, it is important to ensure that all relevant managers and supervisors in your company are aware of this fact.
• Limiting unnecessary disclosure of confidential information. During the investigation, you should also limit unnecessary disclosure of confidential information. While it is important that the right people have the right information, you will want to take reasonable steps to keep confidential information from leaking to other people in the company or even beyond.
• Distinguishing lawful discipline from retaliation. Finally, once you have gained a clear picture of whether the whistleblower complaint was warranted, you will need to make sure that any subsequent actions are not deemed to be unlawful retaliation. This is an area of high risk that requires careful planning. As long as you have evidence to support your decision to discipline, firing the reporter for a job-related reason, rather than the fact that they blew the whistle, may be defensible.

How Can an Employer Investigate a Complaint Without Exposing Itself to Criminal or Confidentiality Problems?

To defend against a retaliation claim, an employer needs to prove that it took adverse action against its employee for reasons unrelated to that employee’s status as a whistleblower. This is one of the most important elements of a whistleblower case. To be able to prove a non-retaliatory basis for termination or any other adverse action, an employer needs to have documented evidence. This includes documenting the employee’s emails, performance reviews, job duties, the timing of any adverse actions and discipline, and the employee’s behavior leading up to the adverse action or discipline. If an employee has filed a whistleblower complaint with the government, this employee may be anonymous for the time being. However, whether the employee remains anonymous if the case proceeds to litigation depends on the statute and proceeding. As a result, for the time being, anonymity may be available to the employee, but, if the complaint leads to litigation, it likely will not. When conducting internal investigations, employers should be careful not to raise any criminal concerns during their investigations. For example, if an employee asserts his or her Fifth Amendment privilege against self-incrimination during an internal investigation, then this may raise concerns about the company’s potential criminal liability. Similarly, when conducting internal investigations, it is also important not to knowingly or unknowingly aid and abet criminal conduct, as this will raise criminal investigation concerns for the company as well. Employers should hire an experienced whistleblower defense attorney to represent them. At Spodek Law Group, our defense team consists of experienced federal defense attorneys. Our attorneys are here to advise you, answer your questions, and defend you in civil or criminal litigation. To form an attorney-client relationship, you usually have to enter into a signed written representation agreement. We have outlined our steps for entering into an attorney-client relationship with Spodek Law Group below. Our referral intake process is designed to give you an opportunity to learn about Spodek Law Group before you make an informed decision about deciding to hire us to represent you. During the referral intake process, our team will never provide legal advice, nor will we establish an attorney-client relationship. Instead, the referral intake process will provide you with the opportunity to learn more about what we do and why we are the right firm to represent you.

When Does Discipline After a Whistleblower Report Become Retaliation Rather Than Lawful Management?

Retaliation is essentially adverse employment action taken against an employee due to that employee’s protected activity. This includes all common forms of adverse employment actions, such as:

• Terminations
• Demotions
• Pay cuts
• Reduced hours
• Reassignment to undesirable locations or shifts
• Denied promotions
• Discipline
• Undue or excessive scrutiny of one’s performance, work product, or conduct

Other forms of adverse employment action include:

• Withdrawing job offers
• Blacklisting, such as through giving negative employment references to potential future employers in an attempt to prevent the employee from securing future employment

When an employee has blown the whistle on alleged misconduct in the workplace, then all of these actions can constitute retaliation. The relevant federal laws generally state that these laws apply when an employee is terminated “because of” or “on account of” having reported alleged misconduct, or they specifically forbid adverse employment action against an employee because of his or her role as a whistleblower. Essentially, this means that in most whistleblower retaliation cases, the employee’s actions must be related to the adverse employment action in some way. The legal protections for whistleblowers are intended to prevent employers from retaliating against employees that have come forward about potential fraud or other illegal activities. If you are concerned that an employee may be able to establish a connection between their protected activity and any disciplinary action, or if you are concerned that an employee may be able to prove that you took adverse action against them based on their status as a whistleblower, we strongly encourage you to speak with one of our experienced whistleblower defense attorneys. To pursue a retaliation claim, the laws generally state that a whistleblower must satisfy three elements:

• Protected Activity, The employee must have engaged in a protected activity, typically reporting alleged fraud, waste, abuse, or other misconduct to a government agency;
• Adverse Employment Action, The employee must have been the subject of an adverse employment action; and,
• Causation, The employee must demonstrate causation between his or her protected activity and being subjected to an adverse employment action. Under some statutes, including Title VII, this can be a high bar because the employee must establish the required causation standard. However, it is also important for employers to note that in cases of alleged retaliation, the burden of proof can shift. When a whistleblower establishes a prima facie case of retaliation, then the employer must show that its adverse employment action was for a non-retaliatory reason. While that might sound like an easy requirement to meet in theory, when faced with skilled representation for the whistleblower, it can become a challenge for employers to adequately defend against retaliation claims.

Which Whistleblower Law, Agency, and Deadline Apply to Your Case?

Whistleblower protections are a complex area of the law. Statutes, employer type, employment jurisdiction, and even whether the employee works remotely can all influence whether a whistleblower claim can support liability for retaliation. There are three primary components to whistleblower retaliation claims. The first component is protected activity. Under federal whistleblower statutes, protected activity generally refers to reporting of alleged fraud, waste, abuse, and safety violations, as well as discrimination or other illegal activity in the workplace. Reports can be made internally or externally. This means that if you are facing a whistleblower retaliation claim, this claim can be founded upon your employee’s prior efforts to report misconduct to company leadership, rather than efforts made to report misconduct to the government. If an employee reports misconduct, where he or she makes these reports determines which government agency will handle the complaint. For example, employees who report fraud, waste, and abuse as part of their jobs generally file their reports with the Occupational Safety and Health Administration (“OSHA”). Employees who report employment discrimination or sexual harassment generally may file charges with the Equal Employment Opportunity Commission (“EEOC”), while wage-theft complaints generally go to the Department of Labor’s Wage and Hour Division. In other instances, employees may make reports to law enforcement agencies (such as the FBI), and, in some cases, reports can be made directly to federal judges and prosecutors. Whistleblower retaliation claims also involve strict deadlines. If a whistleblower makes a complaint to a federal agency, they typically need to file a whistleblower retaliation claim within a certain window of time. These deadlines can range from 30 to 365 days, depending on the statutory authority under which the whistleblower is claiming protection. Failure to file within these deadlines can result in the whistleblower losing their eligibility to seek relief. Finally, in cases involving federal employees, such as those who work for the Department of Defense, the federal Whistleblower Protection Act can apply to federal employees, while separate statutes can apply to certain federal contractors. If you are facing a whistleblower complaint involving a federal employee or contractor, you should discuss this with one of our lawyers.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.