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Whistleblowing

Whistleblowing is when an employee reports an employer who is breaking the law or who the employee believes is breaking the law. Employees who blow the whistle on their employers are usually protected by law. If they are fired or otherwise retaliated against for whistleblowing, they can bring a lawsuit under either a statutory or common law remedy.

For instance, under Oregon Revised Statute Chapter 659A.199, the Oregon legislature has taken a clear stand to protect employees who report corporate misconduct. As of January 2009, in Oregon, it is an unlawful employment practice for an employer to discharge, demote, suspend, or in any manner discriminate or retaliate against an employee for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation. There are also specific federal laws which protect whistleblowers who “blow the whistle” on fraud or false claims made upon the government. Under the False Claims Act, Congress has recognized the vital role played by whistleblowers in fighting fraud on the government. See Qui Tam.

Currently, there are more protections for public employees than for employees who work for private employers. For additional information on whistleblowing, see Don’t Let Your Employer Intimidate You

What is whistleblowing?

In most cases, the employee must report an illegal act to someone outside the employer, such as a government or law enforcement agency. If the employee just complains to someone inside the company, that is not likely to be considered whistleblowing under statutory law. However, the employee may be protected under other laws. For example, it is illegal to fire someone for complaining or blowing the whistle on sexual harassment or discrimination.

Common Retaliatory Actions
Although discharge is a common form of retaliation, so are the following:

  • Demotion or failing to promote
  • Altering work assignments
  • Reduction in pay or benefits
  • Discipline of the whistleblower for violating employment policies
  • Forced resignation or threatened discharge
  • Adversely altering the employee’s working conditions or terms of employment

Protection for Whistleblowers

State and federal laws protect whistleblowers from retaliation by their employers. However, the nature, scope and effectiveness of these laws vary in each state, along with the procedures for reporting violations.

Because whistleblowers often report health and safety violations in the workplace, the federal office of Occupational Safety and Health enforces a number of these laws. A few of the many federal statutes providing protection to whistleblowers include:

  • Americans with Disabilities Act: This law protects employees from retaliation for filing disability discrimination charges.
  • Title VII of the Civil Rights Act of 1964: This act prohibits retaliation for participation in discrimination claims based on race, gender, religion, ethnicity, or national origin.
  • The False Claims Act: This act authorizes treble damages thereby providing a strong civil remedy against contractors and others who defraud the U.S. government. It also allows individuals who discover the fraud to bring the action and receive a percentage of any award. In 1986, Congress added whistleblower protection to the act. As a result, if the whistleblower is fired for reporting, he may be entitled to reinstatement with seniority in addition to double back pay, interest, special damages incurred, and attorneys’ fees.
  • Whistleblower Protection Act of 1989: This act protects federal employees from retaliation when they disclose violations of law, gross waste of funds, abuse of authority, or a substantial and specific danger to public health.
  • Occupational Safety and Health Act: This act grants protection to workers who file complaints about unsafe and illegal conditions in the workplace.
  • Sarbanes-Oxley Act: Recently enacted, this law creates accounting and reporting duties for publicly-traded companies. Protection is included for employees who alert the SEC to violations of this act and produce evidence of fraud.

Does the employer have to actually violate the law?

It is not necessary that the employer actually broke the law. The employee must report in good faith and have a good faith, reasonable belief that a violation has occurred. Whether or not the employer broke the law, the law still protects employees from retaliation or termination.

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