Various federal statutes contain whistleblower provisions that protect employees who raise or report concerns that range from workplace safety, securities laws violation, or false claims submitted to the federal government. Different activities are protected depending on the statute at issue. Generally, retaliation protection kicks in if the employee reports conduct that he or she reasonably believes violates the law, files a formal complaint about the violation, or testifies, assists, or participates in proceedings related to the violation. Depending upon the anti-retaliation statute, internal reporting of concerns to an employer may be a protected activity.
What Constitutes Retaliation?
Illegal retaliation can take many forms. In general, any adverse action taken against an employee because the employee raised concerns or otherwise took part in protected activity is prohibited. Adverse actions could include termination, demotion, disciplinary action, or the denial of overtime or promotions. However, the action need not hit the employee’s paycheck to qualify as retaliation. Any action that would discourage a reasonable person from complaining can be retaliation. For example, a shift change or treating the employee differently (i.e., isolating or mocking the employee) can qualify as retaliation.
Why You Should Implement Policies to Address Employee Concerns
Retaliation is not only against the law but is also bad for overall morale and business. For all of these reasons, companies should have programs in place that create a culture of compliance, both by encouraging the reporting of concerns but also prohibiting retaliation against employees who complain. Without such programs, employees may hesitate to report problems due to fear of retaliation or fear that the company will not take serious efforts to resolve the concerns. These policies and programs also allow companies to address problems before they become more difficult to correct.
How You Should Implement Policies to Address Employee Concerns
A company’s policies should make reporting easy (but also document each report), provide methods for timely investigating and evaluating complaints, and ensure no retaliation. In particular, the policies should provide clear information on how to report concerns, i.e., through Human Resources, supervisors/management, a hotline (that is regularly checked) or anonymous reporting. Employees, supervisors, and managers should be trained regularly on these policies to ensure that they understand their role and how they must comply. If an employee believes that he has suffered retaliation for submitting such a claim, the company should have independent mechanisms in place for reporting and investigating claims of retaliation.
Finally, employer policies must be crafted so as to not discourage employees from reporting violations to governmental agencies and to not require that such violations be reported to the employer first. You want to hear about a potential problem (and have a chance to address it) before the government opens an investigation.