Suing for Retaliation, If You Whistleblow While You Work
The process of a workplace retaliation lawsuit in LouisianaBy Trevor Kupfer | Last updated on January 20, 2023
Use these links to jump to different sections:
- Laws That Protect Whistleblowers
- 3 Things That Help Your Claim
- How Long Will My Case Take, and How Much Can I Win?
- The Risks and Realities of Retaliation
Hopefully you will never have to blow a whistle because of unlawful activity at your workplace, or, if you do, it is dealt with appropriately. Because take it from Louisiana employment attorneys: Retaliation is an ugly business.
“I’ve seen a lot of companies operate a circle-the-wagon mentality for damage control when wrongdoing is brought out, rather than addressing the situation as they should,” says Christopher L. Williams, a solo practitioner and employment lawyer at Williams Litigation in New Orleans.
Laws That Protect Whistleblowers
There are many federal and state laws that protect employees, should they report wrongdoing on the part of a business or coworker. “The most important thing to do at the beginning is determine the nature of the complaint, because that dictates what statutes it may fall under,” says Williams. “There’s the Dodd-Frank whistleblower protection for reporting violations of securities laws at financial institutions, and the False Claims Act to report companies defrauding the government, for example.”
“They’re always very unique, specifically in regard to the industry they originate from,” agrees Amanda Butler, of Business Law Group in New Orleans. “For instance, one of my cases fell under the Occupational Safety and Health Administration (OSHA), which protects employees who say there’s a safety violation on-site—so that’s typically for industrial or manufacturing.” One of Butler’s current clients worked for a large investment firm franchisee, which has legal implications with federal government organizations like the Securities and Exchange Commission (SEC) and FINRA, plus the state whistleblower protection laws.
Louisiana’s general whistleblower law protects against workers who:
- complain about or report a workplace act or practice that violates state law;
- provide information or testimony in a public investigation, hearing, or inquiry into any violation of the law;
- refuse to participate in (or object to) an illegal employment act
Other examples of industry-specific protections include: health care employees reporting to the Louisiana Department of Health and Hospitals, insurance company employees reporting to the authorities, and employees who file workers’ compensation claims or environmental wrongdoing.
3 Things That Help Your Claim
In any case, Williams suggests preparing a timeline and other specifics of what transpired, including all the parties involved. There are three items, he says, that help any whistleblower case:
- You reported it to more than one person. “A supervisor, HR, an ombudsman, an ethics hotline—because one person, particularly if they did something wrong, may sit on it and not send it up the chain,” he says.
- You documented it in writing, preferably email. “It’s easy for a potential plaintiff to have the record later on, should you need it,” Williams adds. “If it’s not in writing, there can be a dispute of whether a complaint was even made.”
- You are respectful in your communications so it cannot be interpreted as insubordinate. “The employer can raise the defense that, ‘We didn’t fire her because of complaints of wrongdoing; we fired her because she was disrespectful to her supervisors,’” he says. It helps to start the communication with something along the line of, ‘I’m not doing this out of malice, but for the good of the company.’
That second point is the biggie, Butler says. “Typically in these whistleblower claims the employee is caught off guard. You think, ‘Oh this must just be a mistake.’ But it’s really important to document at every step—with dates and times of the whistleblowing activity. It’s obviously good to reach out to counsel for legal advice when you know illegal activity is taking place, and what they’ll do is say: document, document, document. … It often becomes he said/she said, so the more evidence you can gather, the stronger the case.”
How Long Will My Case Take, and How Much Can I Win?
The case resolutions in these cases can vary as much as the claims themselves. Often it comes down to the venue—some federal organizations are fast, others slower—and if it goes to trial or is settled out of court.
“If the wrongdoing is obvious and the company is forthright, it could be as little as nine months to a year,” Williams says. “If not, if it’s full litigation and goes through the administrative exhaustion process, it could be two to three years.”
The monetary reward also depends on the circumstances of the case. In a False Claims Act case, for instance, a whistleblower can potentially recover a share of the fraud that is uncovered. “If it involves military contracts or Medicare, which involve hundreds of millions of dollars—it may not be the norm, but there have been awards in tens of millions of dollars,” Williams notes. “In a Title VII discrimination or retaliation complaint, the compensatory damages are capped at $300,000. But that’s where state laws come into effect, too. I always consider whether it’s advisable to file under both state and federal, because Louisiana has no cap on compensatory damages and I want to get my client the most recovery that I can.”
The Risks and Realities of Retaliation
No matter how you feel wronged, attorneys stress that you’re not alone in your fight.
“Lawyers have the benefit of seeing these situations on multiple bases and knowing what administrative processes to go through,” Williams says.
“Whistleblower retaliation claims have a lot of nuance and gray areas,” Butler says. “A lot of employees may not realize that any kind of adverse action counts as a retaliatory action. You may not have been fired, but you may not have been given a promotion for 10 years, or are given a demotion. You don’t want to be that person who’s set back a decade without contesting it sooner.”
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