RETALIATION/PROTECTION FOR EMPLOYEES WHO BLOW THE WHISTLE
There are many Connecticut and federal laws in place to protect employees who blow the whistle, which usually involves reporting or opposing some type of conduct that the employee believes is illegal. These laws make it illegal for employers to retaliate against an employee who engages in activity that is “protected” under the law in some way. If an employee is subjected to retaliation in violation of the law, the employee can bring a legal action against the employer for a variety of remedies and damages. Some of the largest awards in employment cases come in retaliation cases.
MPP has significant expertise and experience in representing whistleblowers, in both state and federal court, who are punished by their employers for exposing, disclosing, and opposing conduct in the workplace which they believe to be illegal. We believe strongly in a principle recognized by the Connecticut Supreme Court in a landmark case involving employee rights: that employees are entitled to “judicial protection when their conduct as good citizens is punished by their employers.” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 477, 427 A.2d 385, 388 (1980). This page discusses just some of the laws that are in place to protect employees from retaliation. If you believe that you have been retaliated against by your employer for reporting, disclosing, or opposing something that you believed was wrong, you should contact an experienced employment lawyer.
Financial Fraud/Securities Law Violations
Sarbanes-Oxley Act of 2002 (“SOX”)
In the wake of the major accounting scandals involving publicly traded companies, Enron and Worldcom, Congress passed the Sarbanes-Oxley Act of 2002 (“SOX”). The law, which applies to publicly traded companies and their subsidiaries, enhanced requirements for internal accounting controls, required new certifications of the accuracy and completeness of financial information and compliance with internal accounting controls, and imposed new standards for the independence of auditors and public accounting firms. In addition, as a means of achieving greater compliance, SOX established criminal penalties for certain conduct which contributed to the fraud involved in the major accounting scandals.
Another one of the major reforms included as part of SOX was a recognition that internal whistleblowers needed greater protection. In both the Enron and Worldcom scandals, internal whistleblowers played critical roles, and the statute realizes that employees are in the best position to know of potential fraud at a publicly traded company, and therefore should be incentivized to report it, and protected from retaliation.
Accordingly, Section 806 of SOX makes it unlawful for any publicly traded company (including a subsidiary, subcontractor, officer, employee, or agent of a publicly traded company, to retaliate against an employee for any lawful act done by the employee to:
- report what the employee reasonably believes to be any type of fraud, or a violation of any rule or regulation of the Securities and Exchange Commission, or a violation of any law relating to fraud against shareholders to (a) any federal regulatory or law enforcement agency, (b) any member of Congress or a congressional committee, or (c) internally at the company to someone who is a supervisor, or some person responsible for investigating, discovering, or terminating misconduct; or
- file, cause to be filed, testify in, participate in, or assist in a proceeding relating to an alleged violation of federal law prohibiting fraud, any rule or regulation of the Securities and Exchange Commission, or any law relating to fraud against shareholders.
If an employee is subjected to retaliation for engaging in activity protected by SOX, the employee must file a complaint with the Department of Labor, OSHA, within 180 days of the act of retaliation. The employee can either allow OSHA to investigate and determine whether unlawful retaliation has occurred, or – if OSHA has not made a final decision within 180 days after a complaint has been filed – the employee may pursue her retaliation claim under SOX in federal court.
If an employee prevails in a SOX retaliation claim, she may recover for lost compensation, with interest, in addition to other damages, including attorney’s fees and litigation costs. In addition, the employer may be ordered to reinstate the employee, with the same level of seniority that the employee would have received if she had not been subjected to retaliation.
In 2010, in response to the financial crash of 2008 and 2009, Congress passed another law that enhanced protection for whistleblowers. This law is generally referred to as the Dodd-Frank Act. In addition to establishing a program which allows whistleblowers to recover a percentage of amounts recovered by the federal government because of information disclosed to the Securities and Exchange Commission by the whistleblower, Dodd-Frank section 922(h) built upon SOX and included additional protections for whistleblowers and employees who reported what they believed to be unlawful conduct.
Specifically, Dodd-Frank makes it unlawful for any employer to retaliate against a whistleblower because of any lawful act by the employee to:
- provide information to the Securities and Exchange Commission in accordance with the procedures of Dodd-Frank;
- initiate, testify in, or assist in any investigation or judicial or administrative enforcement action of the Securities and Exchange Commission based on information provided by the employee; or
- because of disclosures made by the employee that are required or protected under federal securities laws, including SOX, the Exchange Act of 1934, or any other rule or regulation that is enforced by the Securities and Exchange Commission.
If an employee is subjected to retaliation in violation of Dodd-Frank, she may file a lawsuit in federal court. The deadline to file such a claim is six years from the date of the act of retaliation, or within three years of when the employee knew about, or should have known about, the act of retaliation, whichever is earlier. In addition to remedies that are available for a violation of SOX, such as reinstatement and payment of attorney’s fees and litigation costs, Dodd-Frank requires an employer who retaliates against an employee in violation of Dodd-Frank to pay the employee double the amount of compensation lost as a result of the retaliation.
MPP has significant experience and expertise in advising employees about their rights under SOX and Dodd-Frank, making disclosures and complaints in ways that are protected, as well as representing whistleblowers who have been retaliated against in violation of SOX and Dodd-Frank in both OSHA proceedings and in federal court.
First Amendment/Free Speech
In Connecticut, it is illegal for any employer to retaliate against an employee because of any act by the employee that is protected under either the First Amendment to the U.S. Constitution, or the provisions of the Connecticut Constitution protecting the right of citizens relating to freedom of speech and freedom of religion. Connecticut General Statutes section 31-51q extends the protections of the First Amendment and certain sections of the Connecticut Constitution to both public and private employers.
Prior Court decisions from both the United States Supreme Court and the Connecticut Supreme Court have established that employees are protected for speech made as a citizen that relates to a “matter of public concern.” Over the years, Connecticut courts have decided that speech by employees reporting, or complaining about, a variety of conduct constituted speech on a matter of public concern, including: conduct by an employer that the employee believes violates some provision of state or federal law; corruption or abuse of power by a public official or law enforcement; practices that involve a potential threat to public safety.
An employer may not retaliate against an employee for speech that touches upon a matter of public concern, if the speech does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.
An employee whose rights are violated under Section 31-51q can bring a lawsuit against her employer in state or federal court, and recover lost compensation and other damages, punitive damages, as well as attorney’s fees and costs.
MPP has advised numerous clients with respect to speech on a “matter of public concern,” and also represented many clients in state and federal courts who have been retaliated against because they spoke up about something which was wrong and engaged in speech on a matter of public concern. MPP has gone to trial on behalf of some of these clients, and received judgments exceeding a million dollars.
False Claims Act Retaliation
Another federal statute protecting whistleblowers is the False Claims Act, which prohibits individuals and companies from submitting false or fraudulent claims to the U.S. Government. In addition to rewarding individuals with a percentage of the recovery that is obtained by, or on behalf of, the Government, the False Claims Act, 31 U.S.C. § 3730(h), makes it illegal for an employer to retaliate against any employee because of any act taken by the employee, or people associated with the employee, to pursue an action under the False Claims Act, or oppose the filing of a false claim with the Government.
If an employee is subjected to retaliation in violation of False Claims Act, she may file a lawsuit in federal court. The deadline to file such a claim is three years from the act of retaliation. In addition to reinstatement, other damages, and payment of attorney’s fees and litigation costs, the anti-retaliation provision of the False Claims Act requires an employer who violates the statute to pay the employee double the amount of compensation lost as a result of the retaliation, plus interest.
MPP has significant experience advising whistleblowers regarding the False Claims Act, and pursuing actions in Court on behalf of whistleblowers who experienced retaliation because they opposed the submission of fraudulent claims to the Government.
Disclosure to Government Agencies
Another Connecticut statute that protects whistleblowers from retaliation is Section 31-51m, which protects employees who report a violation of law, or a suspected violation of law, to a government agency. For employees who work at private companies, this statute only protects external disclosures to government agencies – – but not internal complaints or disclosures within the company.
For employees that work for the State of Connecticut, it protects internal reports to the State of Connecticut, as well as external reports or complaints to another government agency.
For employees that work for a town or municipality within Connecticut, it protects internal complaints or disclosures within the government for the town or municipality regarding a violation of law, or a suspected violation of law, as well as such complaints to external government agencies. In addition, for employees who work at municipalities, the law also protects complaints about unethical practices, mismanagement, or abuse of power within the town or municipality.
Importantly, the deadline to file a lawsuit regarding retaliation in violation of this statute is 90 days from the act of retaliation, after all administrative remedies have been exhausted. An employee who experiences retaliation for reporting misconduct in violation of this statute can recover back pay, employment benefits, reinstatement to employment, as well as attorney’s fees and costs.
A number of laws prohibit discrimination and harassment on the basis of protected characteristics such as race, gender, pregnancy, national origin, religion, or disabilities or serious health conditions. Those same statutes also prohibit retaliation against employees for complaining about, or opposing, what they reasonably perceive to be unlawful discrimination against themselves or another employee. There is also a Connecticut law, Section 31-290a, which prohibits an employer from retaliating against an employee because the employee has filed a workers compensation claim, or otherwise exercised rights that are protected under the workers compensation statute.
Each of those statutes provides procedures pursuant to which employees whose rights have been violated can file claims in court, or with administrative agencies, and recover damages.
MPP has significant experience and expertise on advising employees, and representing employees before administrative agencies and in court, with respect to claims of discrimination, harassment, and retaliation for opposing unlawful discrimination and harassment.
Reporting Wage Violations/Failure to Pay Overtime or other Wages
Failure to pay wages is a pervasive problem in Connecticut, and throughout the United States. In addition to representing individuals, and groups of individuals in actions to recover unpaid wages and overtime, MPP has represented individuals who have been retaliated against by their employers because they filed a claim seeking unpaid wages.
It is illegal, under both federal law and Connecticut law, for an employer to retaliate against an employee for filing a complaint seeking unpaid wages. If you believe you have a claim for unpaid wages, you should consult with qualified counsel to ensure that your complaint is filed in a way that ensures you are protected from retaliation under the statute, and that it is filed in an appropriate way, and before the expiration of the applicable deadline.
Other Wrongful Discharge
In Connecticut, it is also unlawful for an employer to wrongfully discharge an employee for a reason that violates an important public policy. This claim is available for employees who are terminated from a job because they have opposed some action which is illegal, or presents a threat to public safety, or violates some other important public policy, but for which there is no specific statute that authorizes an employee to bring a claim for retaliation for reporting violations under the law. If you believe you have been retaliated against by your employer for opposing something that you thought was wrong, you should immediately consult with qualified counsel for advice as to whether you have a retaliation claim under a particular statute, or, if not, whether you can pursue a claim for wrongful discharge in violation of some important public policy under Connecticut law.