It can be incredibly difficult for an employee to make fraud allegations, or voice civil rights or safety concerns, about the company that pays him. Both state and federal legislators have long recognized this, as well as the fact that most of these situations would never come to light unless workers were assured they would be shielded from institutional backlash and retaliation. This is why we have whistleblower protection laws at both the state and federal level.
Still, employees must proceed with extreme caution because if their action does not meet the specific criteria of protected activity, they may find it difficult to remedy any adverse impact on their career. Consultation with an experienced whistleblower attorney in New York City will be key to determining whether assertions will be protected. Additionally, per both the state and federal False Claims Acts, the worker who blows the whistle on government fraud may be entitle to a significant portion of the recovery via a qui tam lawsuit.
What is classified as whistleblowing activity? There are 17 federal statutes that contain provisions for whistleblower protections, and protections are extended through the Occupational Safety and Health Administration (OSHA). These are: the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Asbestos Hazard Emergency Response Act, the International Safe Container Act, the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, the AIR21 Act, the Sarbanes-Oxley Act, the Pipeline Safety Improvement Act, the Federal Rail Safety Act, the National Transit Systems Security Act and the Consumer Product Safety Improvement Act.
While the specific protected activities vary among statutes, the basics would include:
- Initiating or causing to be initiated an investigation into a violation of one of these 17 statutes;
- Testifying in any such proceeding;
- Complaining about a violation.
It’s the Department of Labor’s stance that any worker who expresses a safety or quality assurance concern internally to their employer are protected by federal whistleblower statutes.
In New York, Section 740 of the Labor Law details the protections of both public and private employees from retaliation from an employer for providing information regarding the employer’s illegal actions. Increased protections are available for health care workers at hospitals, nursing homes and mental health agencies under Section 741. These provisions specifically protect workers who voice concerns about policies or actions that result in inadequate or improper patient care.
Under the state law, the protections aren’t applicable unless the informant first reports the concern to a supervisor. The employer must be given a “reasonable” amount of time to make adjustments or corrections. The exception is if a health care worker suspects an immediate threat to patient safety if fast action isn’t taken.
Whether an employer makes the correction or not, the employee might still be subject to retaliation. Sometimes, this is obvious, and other times, more subtle. Retaliation is characterized by “adverse action” taken against the worker as a punishment for engaging in whistleblowing activity. Adverse action could include:
- Reduction of hours or pay;
- Reassignment affecting promotional prospects;
- Failure to hire or rehire;
- Denial of benefits;
- Denial of overtime;
- Lay-off or termination.
In some cases, the adverse action may be less obvious. For example, The Washington Post recently reported about the long tradition within federal agencies of “cubicle in exile.” On paper, it doesn’t sound that bad. (I.e., “They moved your office.”) However, workers who have blown the whistle have found their offices moved to basements, broom closets and break rooms. Facing isolation and an increase of idle time, many quit. One worker, a former spokeswoman for the Department of Veteran’s Affairs, was reassigned to a new job – in the basement – after blowing the whistle on mismanagement of a previous supervisor. She is now fighting in court for federal whistleblower protection, saying her new assignment is a form of retaliation.
Workers who suspect wrongdoing by employers should consult first with a private attorney, who can help ensure rights are protected at every phase of the process.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
For whistleblowers, a bold move can be followed by one to department basement, Aug. 3, 2014, By David A. Fahrenthold, The Washington Post
More Blog Entries:
Whistleblower News: One Major Setback, One Important Victory, June 6, 2013, New York City Whistleblower Lawyer Blog