Workplace Retaliation

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Legal protections for employees who report illegal misconduct by their employers, or “blow the whistle,” have increased over the past several years, and employees continue to file claims of retaliation, based on both federal and state laws, with ever-increasing frequency. There are currently more than 20 federal laws that contain specific whistleblower protections. An employee or former employee may file a complaint, usually with the proper administrative agency, if he or she believes that an employer retaliated against him or her by taking unfavorable personnel action because of the employee’s protected activity. The Equal Employment Opportunity Commission (EEOC) aggressively prosecutes retaliation claims. Recently, the EEOC reported that retaliation charges filed in fiscal year 2015 numbered a record high of 39,757, surpassing sex, disability, and race charges. Retaliation charges accounted for 44.5 percent of all charges filed with the EEOC. These statistics make it even more important to make sure employers are in front of these issues.

Due to the potential for costly civil and/or criminal liability, employers should be proactive in preventing and responding to whistleblower retaliation claims by taking steps such as encouraging a positive compliance culture and conducting effective investigations. These practices can help employers avoid and, if necessary, defend against claims of retaliation. A culture of compliance not only deters employees from complaining externally, but also strengthens the employer’s position in the event that the employee files a retaliation lawsuit in the future. Maintaining good written policies (including effective internal mechanisms for raising concerns about perceived improprieties) and conducting training on such policies can help companies encourage a positive compliance culture.

Employers can also try to minimize the risk of retaliation claims by completing a thorough investigation. Upon receipt of a complaint of workplace discrimination or harassment, an employer should act promptly, reasonably, and effectively to investigate that complaint. Employers should not allow the recommendations coming from a well-conducted investigation to go unaddressed—if any are not implemented, record why. Always approach discipline or discharge of a known whistleblower with appropriate caution; ensure the business reasons for the decision are well supported and documented and that the decision-maker is as insulated as possible from claims of retaliation through independent review. If a higher-level supervisor must approve adverse actions recommend by a lower-level supervisor who is the subject of a known whistleblower discrimination or retaliation claim, an independent evaluation of the recommendation should be made. A process that marshals foresight, planning, a commitment to fairness and sensitivity, control of communication, and common sense will more often than not protect the employer because a process that is fair and is fairly documented is more likely to be perceived as fair—by employees, the applicable administrative agency, judges, and juries.

Even with a positive compliance culture and effective internal investigations, employees will still, at times, pursue retaliation claims. Employees that have blown the whistle on alleged misconduct are not shielded from discipline, layoffs, or other adverse actions. In order to avoid claims of retaliation, and possibly defend against a retaliation lawsuit, employers should take great care after an investigation and in dealing with issues that arose.

Key Resources

For your convenience, ACC has compiled the following key resources to assist you in your compliance efforts.

For more try searching ACC's online library for "whistleblowing retaliation"

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