Whistleblower Protection For Employees
Whistleblower Protection For Employees: Under the newly enacted Illinois Whistleblower Act, employees are protected under three separate provisions plus a damages clause:
- An employee may not be retaliated against for disclosing suspected violations of state or federal law to a government or law enforcement agency. It is very important that an employee disclose the violation to those agencies. It is not enough to report the conduct to human resources. The employee's suspicion does not need to actually be true, nor is the employee required to prove conclusively that the violation happened. The only requirement is the employee needs to have a reasonable cause to believe that a violation occurred. The law covering the Whistleblower can be found at 740 Ill. Comp. Stat. 174/15.
- An employee may not be retaliated against for refusing to participate in an activity that violates state or federal law. 740 Ill. Comp. Stat. 174/20. It is my experience that retaliation takes place far too often in workplaces and employees should take care to document any retaliation.
- Lastly, employers are prohibited from adopting policies that prevent employees from disclosing suspected violations of state or federal law to a government or law enforcement agency. 740 Ill. Comp. Stat. 174/10. This means the company cannot put anything in the employee handbook which would prohibit the employee from reporting such conduct.
- If an employer violates any portion of the Whistleblower law, the employer, liability includes the following relief. In the case where the employee no longer works for the employer, twice the amount owed in back pay, actual damages and special damages, which include mandatory attorney fees and costs. Regrettably, punitive damages are not allowed under the law
Under Federal Law an employee may file a whistleblower complaint for retaliation if any of the following occurs. Retaliation is defined occurs when an employer through a member of manager, an administrator or supervisor fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.
An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Retaliation can have a negative impact on overall employee morale.
Because an adverse action can be subtle, it may not always be easy to spot. Examples of adverse actions include, but are not limited to:
- Firing or laying off
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Intimidation or harassment
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Reducing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee's protected activity)
OSHA administers more than twenty whistleblower statutes with varying time limits for filing. The time frame for filing a complaint begins when the adverse action, such as a firing, occurs and is communicated to the employee. The varying time frames are as follows:
- Section 11(c) of the Occupational Safety and Health Act (OSH Act)
- Clean Air Act (CAA)
- Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
- Federal Water Pollution Control Act (FWPCA)
- Safe Drinking Water Act (SDWA)
- Solid Waste Disposal Act (SWDA)
- Toxic Substances Control Act (TSCA)
- International Safe Container Act (ISCA)
- Anti-Money Laundering Act (AMLA)
- Asbestos Hazard Emergency Response Act (AHERA)
- Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
- Affordable Care Act (ACA)
- Consumer Financial Protection Act (CFPA)
- Consumer Product Safety Improvement Act (CPSIA)
- Criminal Antitrust Anti-Retaliation Act (CAARA)
- Energy Reorganization Act of 1974, as amended by the Energy Policy Act of 2005 (ERA)
- Federal Railroad Safety Act (FRA)
- FDA Food Safety Modernization Act (FSMA)
- Moving Ahead for Progress in the 21st Century Act (MAP-21)
- National Transit Systems Security Act (NTSSA)
- Pipeline Safety Improvement Act (PSIA)
- Sarbanes-Oxley Act (SOX)
- Seaman’s Protection Act (SPA)
- Surface Transportation Assistance Act (STAA)
- Taxpayer First Act (TFA)
Please contact my office if you believe you are being retaliated against at work.