Articles Posted in Retaliation Claims

A whistleblower is an employee who reports a workplace violation. Whistleblowers are responsible for making the workplace a safer and more equal environment. However, employees often do not report violations in the workplace because they fear that if they did, their livelihood might be jeopardized based on potential retribution from their employers. To promote workplace safety and to ensure that companies and organizations are not violating the law, federal and state governments enacted various whistleblower protection acts.

Most recently, a presidential Executive Order required the Department of Veterans Affairs (VA) to establish the Office of Accountability and Whistleblower Protection (OAWP). This office is designed to ensure the VA is accountable for its policies, procedures, and conduct. VA employees, potential employees, and former employees can report certain violations to this office. The OAWP is required to receive and investigate these disclosures. Furthermore, they ensure the employee does not face any retaliation for their disclosure. Retaliation includes actions taken against the employee based on their complaints such as termination, demotion, or any other adverse employment action.

Typically, the OAWP will investigate allegations regarding violations of rules or laws, fund mismanagement, abuse of authority, and behavior that is dangerous to public health or safety. The OAWP directly reviews claims of misconduct, retaliation, and performance issues that involve certain VA employees. The scope of the investigation is limited to VA employees that are senior executives or those that are in a confidential or policy-making position. The office will investigate supervisory employees if the allegations concern retaliation against an employee.

The Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common type of discrimination lawsuit employees bring against their employers. Under state and federal anti-discrimination laws, Texas employees and prospective employees cannot be punished for any “protected activity.” Protected activity is a legal term used to describe an employee’s right to engage in certain activities without fear of retaliation.

After an employer receive a complaint of discrimination, an investigation should take place to substantiate the claims. During these investigations, employees and co-workers may face questions about what they have witnessed in the workplace, or if they have any knowledge or experience with the issue at hand. Employees are expected to answer truthfully and fully cooperate in these investigations. In some cases, employees are discouraged from participating in these investigations for fear of retaliation. However, employers are not permitted to retaliate against an employee for cooperating in an investigation, even if the investigation does not lead to the filing of a discrimination lawsuit.

If an employee is fired, demoted, transferred, or otherwise punished for engaging in activities such as filing or participating in an employment discrimination complaint or lawsuit, that is retaliation for engaging in protected activity. The EEOC prohibits retaliation against an employee for participating in the complaint process. Employees are also protected if they try to oppose discrimination in the workplace in any other way. However, the employee must be able to show they were acting on a reasonable belief that discrimination was taking place. Employees frequently claim they experienced negative performance reviews, verbal abuse, ridicule, undesirable transfers, or even termination after participating in an employment discrimination investigation.

Over the past few decades, government regulators have begun to keep a much closer eye on the conduct of those in charge at large corporations. However, regulators may not be privy to all the inner-workings of a corporation, and given the number of corporations and lack of available resources to ferret out the wrongdoers, corporate misconduct flew under the radar for years. More recently, however, the Securities and Exchange Commission (SEC) started the SEC whistleblower program, which relies on employee whistleblowers to report violations of U.S. securities laws.

Under the SEC whistleblower program, an employee who voluntarily reports information that assists the SEC in recovering amounts of more than $1 million is eligible for a financial award. The amount of the award ranges between 10% to 30% of the monetary sanctions collected by the government. These funds are paid out of a separate fund called the Investor Protection Fund, rather than with company proceeds.

To be eligible for a reward through the SEC Whistleblower program, a reporting employee must be able to show the following:

  • The information provided relates to a violation of U.S. securities law or relates to the bribery of a foreign official;
  • The information was provided voluntarily, and not in response to questioning or an investigation;
  • The information was based on personal knowledge, and not publicly available records; and
  • The information must result in a new investigation or significantly contribute to an existing investigation.

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The federal government has certain laws ultimately designed to prevent the misuse or waste of federal funds. Thus, to encourage federal employees to “blow the whistle” on those engaging in misconduct, lawmakers passed the Whistleblower Protection Act (WPA). Under the WPA, government employees who report certain acts of misconduct are protected from an employer’s retaliation.

For decades, the federal government has relied upon non-government private contractors to perform certain government functions. However, the WPA only applies to government employees. Thus, to extend the whistleblower protections of the WPA to private government contractors, Congress included certain protections in the National Defense Authorization Act (NDAA).

As noted above, the NDAA provides protections to private contractors hired by the federal government when they report waste, fraud, or abuse in federal government contracts and grants. The NDAA also covers whistleblowers who are employees of private contractors, as well as subcontractors and anyone else working on a government contract or grant.

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The First Amendment of the United States Constitution protects citizens’ right to free speech, assembly, and religion, among other things. However, not only does the First Amendment require people to be able to freely express themselves without fear of criminal repercussions, it also prohibits the government from taking other actions against them.

The First Amendment applies to all government actors, including public employers. In the context of Texas employment law, the First Amendment protects employees who express themselves in a manner that may be frowned upon by their employers. The idea behind retaliation claims is that the First Amendment would have little effect if people were afraid to exercise their rights due to the potential that they could be terminated or demoted.

There are three elements to a First Amendment retaliation claim. First, the activity or speech the employee engaged in must be protected under the First Amendment. This means comments or actions that are obscene, meant to incite violence or defame another will not likely be protected; however, most other speech is protected under the First Amendment.

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Employees of organizations are privy to all sorts of information that is not available to the public. Thus, it is not uncommon for an employee to discover that their employer is defrauding the government. When an employee discovers their employer is engaging in fraud, they can blow the whistle on their employer’s illegal conduct by filing a Texas qui tam lawsuit.

A qui tam lawsuit is essentially a whistleblower claim. The term qui tam is short for the Latin term, “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which roughly translates to “he who brings the action for the king as well as himself.” The idea behind a qui tam lawsuit is to incentivize those with knowledge that an organization is defrauding the government to come forward.

An employee who has knowledge of an employer’s fraud can file a civil lawsuit under the False Claims Act seeking to recover compensation for the employer’s fraud on behalf of the government. Once a qui tam lawsuit is filed, it is kept under seal while the Justice Department investigates the claim. During this period, the subject is not made aware they are under investigation.

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Too often employees endure unfair or untenable workplace environments without speaking up. Often, employees are apprehensive about discussing poor working conditions with coworkers for fear of being retaliated against by their employer. Thus, it is essential that Texas employees are aware of the federal labor standards prohibiting this type of illegal practice that apply to both union and non-union workers. If you have a question about workers’ rights at your job, reach out to a Texas employment lawyer for answers.

Frequently Seen Unfair Labor Practices

Employees are vulnerable to unfair and illegal labor practices if they are unaware of the laws that protect them. Some common instances of unfair labor practices include situations where an employer threatens employees with some sort of adverse action if they engage in a discussion of workplace grievances. Some employers will even spy on employees or conduct investigations in an effort to uncover an employee engaging in the above behaviors. Commonly, this includes looking into an employee’s social media accounts.

The National Labor Relations Act (NLRA) protects an employee’s right to discuss their working conditions with other employees. While employers should be aware that employees are often allowed to say negative things about their employer without risk, many of them continue to take adverse actions against their employees in these instances.

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