Whistleblower and Retaliation Claims

Whistleblowers play an indispensable role in modern society. With the inherent complexity of large corporate, governmental, and academic institutions, it can sometimes be difficult, if not impossible, for outsiders to ascertain and see potential malfeasance. Whistleblowers help bring transparency and accountability to these complex organizations by pointing out from within when something illegal is happening. Unfortunately, some companies don’t appreciate employees who speak up for what is right and retaliate against them. That’s where we come in.

California law provides whistleblower protection so that companies cannot silence these employees by threatening their livelihood. Our employment attorneys are committed to protecting the rights of individuals who bravely come forward to report unlawful activities, helping ensure that they are properly compensated when they are retaliated against for doing the right thing. Our whistleblower attorneys can provide you with the legal representation needed to navigate the complexities of such claims.

What is a whistleblower?

A whistleblower is an individual who exposes wrongdoing or illegal activities within an organization. Speaking up can be driven by an innate desire to do the right thing or to make sure the institution understands the consequences of its actions or intended actions. Whistleblowers shed light on corruption, fraud, or other forms of misconduct that may otherwise go undetected. Whistleblowers can bring attention to corporate malpractice, government corruption, financial irregularities, environmental violations, or breaches of ethical standards. By stepping forward, whistleblowers help create a more transparent, accountable, and fair environment for all stakeholders involved.

Elements of a Whistleblower Retaliation Claim

To prevail on a whistleblower retaliation claim, certain essential elements must be established. These elements must be proven for a whistleblower to recover against their employer in court. These same elements are the facts we consider in evaluating potential client whistleblower retaliation claims.

1. Whistleblowing Activity

The first element focuses on identifying the extent of whistleblowing conduct. In order to qualify as a whistleblower, an employee must have (1) disclosed (or the employer must believe the employee disclosed or might disclose) to a government agency, law enforcement agency or person with authority over the employee (i.e. their boss or another executive) or an employee with authority to investigate, discover, or correct the issue (think HR representative, in-house attorney, other executive) that employee reasonably believed to be a violation of state or federal law or regulations; (2) provided information to or testified before a public body that was conducting an investigation, hearing, inquiry; or (3) refused to participate in an activity they reasonably believed to be unlawful. Thus, whistleblowing can take many forms, but the whistle must actually be blown to someone with authority over the employee or the authority to do something about it, or participation in the conduct must actually be refused.

2. Reasonable Cause to Believe a Violation of Law

Whether the whistleblowing is based on disclosure, testimony, or refusal to participate, they all have one thing in common: the employee must have reasonable cause to believe that the information disclosed or employee’s participation in the activity would constitute a violation of state or federal laws, rules, or regulations. If there is no good reason to believe the conduct at issue is illegal, then there is no whistleblower retaliation claim.

3. Adverse Employment Action

Whistleblower retaliation unsurprisingly also requires retaliation—or in employment lawyer speak, an adverse employment action. Termination of employment is the most common adverse employment action but other lesser retaliation like demotion, unfair disciplinary action, harassment, negative performance reviews, ostracization, or any other form of mistreatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion can also occur. Trivial actions or conduct not likely to do more than anger or upset an employee do not count as adverse employment actions.

4. Contributing Factor

The whistleblowing activity must be shown to be a contributing factor to the employer’s decision to take the employment action. That connection is key in most whistleblower cases and requires linking the adverse action with the whistleblower's disclosure or reporting, gathering evidence such as emails, witness testimonies, performance records, or any other relevant documentation that can establish a strong cause-and-effect relationship.

5. Harm

Finally, a whistleblower must show that they were harmed as a result of the adverse employment action. Assuming the other elements are met, proving some harm is not difficult. But showing the full extent of the harm suffered by the whistleblower—and that employer’s conduct was what caused that harm—is key to achieving meaningful compensation for the whistleblowing employee.

6. Pretextual Defense

Lastly, although a defense is not an element of a claim, it is essential to identify and counter any pretextual defenses raised by the employer. Employers often attempt to provide alternative excuses, explanations, or justifications for the adverse action taken against the whistleblower. They may blame the whistleblower for the underlying illegal activity or simply claim that the whistleblower was not performing their job satisfactorily. A skilled attorney will anticipate and disprove these pretextual defenses by presenting compelling evidence and arguments that the whistleblowing is what caused the employer to decide to take the adverse employment action or at the very least was a contributing factor in doing so.

Why Choose Us?

At Phillips, Erlewine, Given & Carlin, we understand the immense courage it takes to blow the whistle on wrongdoing in your workplace. Our whistleblower attorneys offers a comprehensive range of legal services specifically tailored to protect and represent individuals in whistleblower retaliation claims. With our experience and deep understanding of employment law and litigation, we have successfully secured favorable outcomes for whistleblowers seeking justice and retribution, whether through negotiation, mediation, arbitration, or litigation. See some of our successes below:

• Employee harassed and terminated after reporting company’s unlawful practices

• Employee retaliated against for reporting company misconduct

• Employee terminated after reporting sexual harassment

• Employee terminated after reporting company’s discriminatory and harassing practices

Our team of experienced employment attorneys know what it takes to obtain successful outcomes in whistleblower retaliation cases. Contact us to discuss your options and next steps.

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