Asian Journal- The Filipino-American Community Newspaper

IN PREVIOUS issues we discussed an employee’s right to refuse an employer’s instruction to perform work that violates the law. If the employer retaliates against the employee because of the refusal to do an unlawful act, the employee may file a whistleblower or retaliation claim.

How can an employee know if the he or she has a whistleblower or retaliation claim? The following guidelines are helpful:

1) The employee engaged in protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law. Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are protected.

Employee complaints that are indirect or misdirected may be protected if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work well or refusing to do anything that undermines safety or quality is also protected.

2) The employer knew or believed the employee engaged in such protected activity – Where the whistleblower has tried to be anonymous, it may be hard to prove the employer has knowledge of the protected activity. Still, some courts will use inferences to deduce who the employer may have suspected. Sometimes, the employer’s investigation or interrogation of an employee who had the courage to speak up can reveal that the employer has knowledge of the protected activity.

Some whistleblowers will announce their protected activities. If they disclose copies of evidence to an agency, they send a copy to the employer by certified mail. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the whistleblowing then the timing alone may suggest that the employer’s true motive was because of the whistleblowing.

3) The employee suffered an adverse employment action – Any action that costs the worker money will be an adverse employment action. These include discharges, demotions, and denials of overtime, promotions, or benefits. Formal discipline is generally accepted as an adverse employment action. Courts are inconsistent on whether they will allow a remedy for a bad evaluation, denial of a transfer, changes in hours or work location, hostile remarks, denial of parking privileges, and other changes that do not reduce a worker’s paycheck.