Many laws have been written to protect those with the courage to speak out at their workplaces on behalf of the public or employees. For example, the Washington Law Against Discrimination protects employees who report discrimination or harassment. Another example includes whistleblowers. Most if not all of the environmental statutes such as the Clean Air Act, etc. have explicit whistleblower provisions to protect employees from retaliation for complaining that their employer may be violating such laws.
In addition to the environmental statutes, other laws protect employees who complain against unlawful discrimination, wage and hour violations, worker health and safety, public health and safety, corporate fraud, government corruption and theft, etc.
1st Element: Protected Activity
If you have made a good faith complaint to your employer about any of the above practices then you have likely engaged in what the law considers “protected activity.”
Proving that you have engaged in “protected activity” is the first step to establishing a claim of retaliation. This means that you have opposed what you reasonably believed to be unlawful conduct under the various laws alluded to above. For example, the most common method of opposition activity is complaining of the unlawful activity to your manager or up the chain of command. Likewise, reporting such conduct in a reasonable manner to others may also be considered protected activity under the law.
In addition, participating in an investigation into the alleged unlawful acts is generally considered protected activity. For example, offering evidence in an internal or governmental investigation generally qualifies as participatory protected activity.
2nd Element: Suffering an Adverse Action
You must also prove that you have suffered an “adverse action.” This is generally a negative employment decision such as being fired, demoted, suspended or otherwise disciplined. However, the U.S. Supreme Court has held that this can also include acts that would otherwise deter someone from engaging in protected activity, so it can be broader than simply a negative employment decision. For example, if your employer threatens you or your colleagues with discipline for continuing to oppose the alleged unlawful practice, this could be considered an adverse action since it would likely deter a reasonable person from continuing to engage in protected activity.
3rd Element: The Causal Nexus
Finally, you need to prove that the adverse action was motivated or caused by the protected activity. Most courts look to the proximity in time between the protected activity and adverse action. However, other facts and circumstances can help establish this causation element. For example, if the employer provides shifting reasons for the adverse decision or if it is simply unworthy of belief, then a jury could find that the employer is simply hiding the real reason for the adverse action – your protected activity.
If you believe that you were retaliated against by considering these three elements then you may wish to contact an attorney.
Very Short Statutes of Limitations
Please be aware that the timelines to file a complaint with the appropriate governmental agency can be as short as 30 days from the notice of adverse action! It is critical in these whistleblower cases to quickly contact the appropriate governmental agency, file a claim, and preserve your rights.
You may be entitled to lost wages, emotional distress damages, and even punitive damages in some cases.