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Whistleblower Retaliation Lawsuits

Understanding Whistleblower Retaliation with the Help of a San Francisco Whistleblower Lawyer

Whistleblowers who expose wrongdoing can be handsomely rewarded for bringing fraud and waste to light. However, there is also the chance that, by exposing such wrongdoing, the whistleblower could be subject to retaliation by the entity against whom he or she is blowing the whistle. To prevent the fear of retaliation from discouraging whistleblowing, most whistleblower statutes contain provisions that protect whistleblowers from negative consequences from their actions and award damages for those who impose them.

What Is Considered “Retaliation”?

With whistleblower retaliation, there is some overlap between whistleblower law and employment law, as it requires the victim to prove that the entity against whom she blew the whistle took an adverse employment action against her. Some common types of retaliatory measures are below.

Common Retaliatory Measures

Whistleblower laws protect whistleblowers from a wide range of retaliatory measures their employers attempt to impose on them. Some examples include:

  • Termination
  • Demotion
  • Suspension
  • Harassment
  • Reducing the employee’s hours
  • Reassignment to less desirable work duties
  • Reassignment to less convenient work locations
  • Lowering the employee’s employment evaluation scores
  • Placing the employee on administrative leave
  • Subjecting the employee to an investigation or surveillance
  • Outing the whistleblower

Retaliation can also encompass actions and behaviors that occur outside of work, such as attacking the whistleblower in the media, suing the whistleblower, or making a false report to government authorities.

Constructive Discharge

“Termination” need not always mean outright firing. In some cases, employers will engage in “constructive discharge,” which occurs when the employer makes working conditions so unbearable that a reasonable employee would feel compelled to resign. It can also occur when an employee refuses to engage in illegal activity.

Anticipatory Retaliation

Just as termination need not mean “firing,” retaliation does not necessarily need to happen after-the-fact. Anticipatory retaliation occurs when an employer retaliates against an employee to discourage him or her from engaging in a protected activity, including whistleblowing. This type of retaliation can also be considered employment discrimination if it concerns the reporting of the employer’s discriminatory conduct.

How Your San Francisco Whistleblower Lawyer Will Prove Retaliation

There are a myriad of whistleblower laws — such as the False Claims Act — that protect whistleblowers from retaliation, all of which have slightly different standards for proving retaliation. However, one of the most common standards is the “contributing factor” standard. This standard holds that retaliation occurs if the employee’s protected activity was a “contributing factor” in the unfavorable personnel action.

First, your attorney must prove by a preponderance of the evidence that you were engaged in a protected activity (i.e., blowing the whistle internally or to the government about fraud or other misconduct).  Then, that your protected activity was a contributing factor in the adverse action taken against you by your employer. This can be proven with a wide variety of evidence, including circumstantial evidence. Such evidence can include motive, bias, work pressure, relationships between the parties, animus, temporal proximity, pretext, shifting explanations, material changes in employer practices, and the employer’s knowledge of the protected activity.

Second, once the plaintiff proves that the protected activity was a contributing factor to the adverse personnel action, the burden then shifts to the employer to prove by clear and convincing evidence that it would have taken the same adverse action even in the absence of the employee’s protected action.

This burden-shifting framework is thus very favorable to whistleblowers, as it imposes a high burden of proof on the employer. For more information on proving whistleblower retaliation, please contact a San Francisco whistleblower lawyer.

What Remedies Are Available to Victims of Whistleblower Retaliation?

Retaliation against whistleblowers can take a severe toll on the whistleblower’s career, finances, and reputation. As such, laws protecting whistleblowers from retaliation also allow them to pursue various remedies when they prove that retaliation occurred. One of the most common remedies in whistleblower retaliation is reinstatement, wherein a whistleblower who was terminated is re-hired by his or her former employer.

Your San Francisco whistleblower attorney will also fight for monetary damages. Although each whistleblower protection law is different, common types of damages include:

  • Back pay: Compensation for wages the whistleblower would have earned had the adverse personnel action not occurred, including any promotions or raises the whistleblower would have been entitled to. Under the False Claims Act, you may be entitled to two times your back pay plus interest.  31 U.S.C.§ 3730(h).
  • Front pay: Compensation for wages the whistleblower would have made during the time it took him or her to find another job. Front pay is used most commonly in cases where significant animosity exists between the parties and neither desire reinstatement of employment.
  • Compensatory damages: Compensation for damages that are not purely economic, such as emotional distress, mental anguish, humiliation, and injury to reputation. These types of damages are less common than reinstatement, back pay, and front pay, and often require expert evidence of severe and extensive harm, such as a medical diagnosis.

Even with the availability of monetary damages, victims of whistleblower retaliation must show that they tried to mitigate their damages by seeking or engaging in similar employment after the adverse personnel action.

Contact a San Francisco Whistleblower Lawyer for More Information

If you believe you have been retaliated against for blowing the whistle, you may be able to pursue a whistleblower retaliation claim. For more information, please contact a San Francisco whistleblower lawyer at Evans Law Firm by filling out our online form or calling us at 415-441-8669.

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