Colorado Whistleblower Protection & Retaliation Lawyer
After years of hard work, during which you “paid your dues” to reach the promotional level you were aiming for, and with future prospects bright, a moral dilemma smacks you right in the face. Six years after you were hired, you became an administrative assistant in the Labor Relations Department of the large, publicly traded, retail company for which you worked. You were given the job of taking paper documents in the department library and transferring them to a digital format. Just after starting that job the company received a subpoena requiring the production of all documents relating to union-labor relations for the past 15 years. The investigation of the grand jury involved the investigation of a former company executive on suspicion of fraud. Upon receiving the subpoena, the company attorney emailed each member of the Labor Relations Department and instructed them to preserve all documents related to the subpoena. Within 15 minutes of that email, a meeting was called by your supervisor, and you and the members of your project team were directed to take the hard copies of documents required by the subpoena and shred them.
You refused to do as directed as you felt that the documents you were asked to destroy were part of those requested by the subpoena and you also felt that the company was trying to hide evidence that would have helped to clear the name of the executive under investigation. You called the former executive and reported what was taking place and the FBI, with whom you cooperated, and the FBI then interviewed you.
What a great feeling you had at having done the right thing! You rightfully expected to be recognized for being an outstanding employee who fought to uphold the law. Unfortunately, that is not what happened. Instead, you were met with hostile treatment by your supervisors and coworkers. You suffered retaliation, including destruction of your personal property, in a physically threatening manner, menacing surveillance of your activities, ridicule, insults, and a pattern of exclusion and isolation. Your complaints of retaliation were not only ignored, but intimidating comments were made about your complaints, and you were ultimately fired. What are your legal rights? (The above facts are based on a reported court decision in the United States District Court for Arkansas, in 2008, Miles v. Wal-Mart Stores, Inc., and are for illustrative purposes only).
What are the Whistleblower Rights and Protection Laws?
There are many Federal and State statutes that protect an employee from retaliation for reporting to an employer a good faith belief that conduct is or has occurred that is in violation of the law. This article is not designed to provide legal advice or render legal opinions for specific situations. The law in other states may vary from Colorado on these issues. For specific legal questions, as to whether your conduct is protected by Federal or State law, contact the attorney of your choice. If you wish to consult with the author on any matter relating to Colorado employment issues, you will be advised of the fee basis for such consultation.
The purpose of this article is not to detail the many Federal and State Whistle-Blower statutes, but rather to generally indicate the type of conduct that may be worthy of protection. The example, which I have given, happened to involve a publicly traded company and therefore, an employee had protection under the Sarbanes-Oxley Act (SOX). Therefore, by way of illustration, I will generally outline the protections afforded under SOX in the above example, the requirements to fall under the SOX protection, and the procedures and remedies available to an employee.
Sarbanes-Oxley Act
The Whistleblower protection of SOX appears at 18 USCS § 1514A, and among other things, prohibits:
Any officer, employee, contractor, subcontractor, or agent of a publicly traded company from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee in the terms and conditions of employment because of any lawful act done by the employee—
- to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by–
- a Federal regulatory or law enforcement agency;
- any Member of Congress or any committee of Congress; or
(C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or
- to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section
1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.
How To Ensure You Are Protected Sarbanes-Oxley
Before an employee can seek the remedies provided for by SOX, the following must be proved:
- The employee must prove that he/she engaged in protected activity. Employees often confuse conditions in the workplace that they feel are offensive, insulting, bad business practices or which are generally felt to be unethical or unfair. Neither SOX nor any of the other Whistleblower protection acts are meant to create an enforceable right to civility or fairness by the employer. The violation, of which complaint is made, must fit under the specific provisions for which SOX is designed or the complaint will be dismissed.
- The employer must be aware of the activity of which complaint is made. In other words, before the employer can retaliate against the employee, it must be aware of the employee’s complaint.
- The employee must have suffered an adverse employment action. Hurt feelings are not a basis. While each case is determined upon its own facts, the employee must suffer some type of adverse consequence, as, for example, demotion, suspension, reduction in pay, termination, or receiving some unwarranted disciplinary action.
- The protected whistleblowing activity must be a contributing factor to the adverse employment action. The timing of the adverse action in relation to when the complaint was made, and the employer found out about, is a critical factor in determining whether the protected activity contributed to the alleged retaliatory conduct. Likewise, if the employer had been subjected to disciplinary actions before reporting the alleged illegal conduct, the question then becomes whether or not that is the reason for the adverse employment action.
How to Preserve Your Whistleblower Claim
If you feel that the adverse action taken against you is the result of your blowing the whistle, a complaint must be filed with the Occupational Safety and Health Agency (OSHA), who is tasked by the U.S. Department of Labor to investigate violations of more than twenty whistleblower statutes protecting employees, including SOX. A complaint asserting your rights under SOX must be filed with OSHA not later than 180 days after the date on which the violation occurs, or after the date on which the employee became aware of the violation. Failure to meet that deadline will be a bar to any further relief under SOX. While you do not need an attorney to file the administrative complaint with OSHA, I recommend that you employ an experienced employment attorney to represent you. That will ensure that you are listing the proper allegations in the Complaint.
Once the Complaint is filed with OSHA, OSHA conducts an investigation of the facts, interviews involved parties and passes on the results of its investigation to the Department of Labor which makes a decision on whether or not SOX has been violated, and if so, what remedies to impose. If either party is dissatisfied with the decision, a request for a hearing may be filed within 30 days of the date of the decision, and an Administrative Law Judge (ALJ) will conduct a proceeding very similar to what would occur in a court, with the
exception of the presence of a jury. This proceeding is very similar to a trial in court, is complex, and, while one can represent themselves, the author strongly recommends that experienced counsel be employed. Following the trial by the ALJ, either party can appeal that decision to the Administrative Review Board of the Department of Labor. Under certain circumstances, a direct proceeding may be filed in a Federal District Court, and a jury trial may be requested.
What are the Remedies for Whistleblower Retaliation?
Under SOX, an employee who has been retaliated against for whistleblowing, may recover back wages and benefits that have been earned, reinstatement to the same position, with the same seniority status that the employee would have had, but for the discrimination, front pay, if reinstatement is not possible, compensatory damages for emotional trauma and attendant physical suffering, punitive damages, reasonable attorney fees and court costs. Depending on your individual circumstances, you may be entitled to additional recoveries under state, rather than Federal, law.
Get Help From an Experienced Whistleblower Protection Attorney Near Denver
There are many more intricacies involved with whistleblower protection and retaliation cases than have been discussed in this article. Learn more about protecting your rights by contacting us today. Attorney Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in the State of Colorado.
