Can I Be Fired for Whistleblowing?

Whistleblower laws protect employees from retaliation for reporting wrongdoing

By Andra DelMonico, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on July 1, 2024 Featuring practical insights from contributing attorney Justin D. Burns

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We have whistleblowers to thank for exposing the dangers of tobacco products, Watergate, secret Swiss Bank Accounts, and Enron. Brave individuals were willing to risk their professional careers to hold those accountable for illegal activity. Because of the public interest in exposing these issues, lawmakers strive to make whistleblowing a protected activity.

Whistleblower protection laws are a subsection of employment law that provides employees recourse against retaliation for doing the right thing. Whistleblowing is encouraged as it is beneficial for society. Protections help encourage people to report wrongdoing that wouldn’t otherwise come to light. By providing wrongful termination protection, employees can feel more confident in reporting. 

What Is Whistleblowing?

Whistleblowing is when an individual reports on the company or government agency they work for. The report could bring to light wrongdoing, a threat to public health, fraud, abuse, or waste. These are common reasons for whistleblowing: 

  • Violation of any law, rule, or regulation
  • Gross mismanagement
  • Gross waste of funds
  • Abuse of authority and
  • Substantial and specific danger to public health or safety

A whistleblower can be on a local, state, or federal level. A whistleblower typically works within the organization where the wrongdoing occurs, but this is not a requirement for being a whistleblower. 

The idea of “blowing the whistle” isn’t new. The term “qui tam” is used when referring to whistleblower lawsuits. This term is short for a Latin phrase that translates as “[he] who sues in this matter for the king as well as for himself.” This concept dates back to Roman law, in which private citizens would report illegal conduct on their fellow Romans. In the 14th century, a similar law was enacted to encourage citizens to report others who were defrauding the king, which was considered illegal activity. 

Whistleblower Protection Laws

The False Claims Act encourages citizens to report companies that attempt to defraud the federal government. Whistleblowers are protected from getting fired for whistleblowing and can receive a percentage of the money recovered. The Sarbanes-Oxley Act of 2002 was enacted because several corporations were caught committing financial fraud. The act protects whistleblowers when reporting financial or shareholder fraud. The Clean Air Act protects whistleblowers from wrongful termination for reporting emissions violations.

The Occupational Safety and Health Administration (OSHA) Act protects whistleblowers from reporting workplace safety violations. The Department of Health and Human Services’ Office of the Inspector General (OIG) investigates whistleblowers identifying healthcare fraud. The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL) protect whistleblowers when reporting employment violations.

Statute of Limitations 

Whistleblowers have limited time to file a complaint for wrongful termination or other adverse action. The statute of limitation can vary depending on the type of whistleblower complaint the individual reported. It could be as short as 30 days or as long as three years. The statute of limitations can also vary based on the applicable state or federal law. Typically, the statute of limitations for a wrongful termination lawsuit begins when the adverse action is taken. 

Oftentimes, an attorney may be able to give better advice to either protect that individual from retaliation or put that individual in a better position in case they are retaliated against. There are definitely a lot of benefits for an employee to consult with an attorney before they are subject to an adverse employment action like a termination.

Justin D. Burns

Whistleblowing Activities Not Protected by Law

While someone may want to become a whistleblower and expose a particular injustice or activity, doing so can expose them to the risk of liability. A whistleblower must act in good faith and not violate any contractual agreement or government clearance held. 

“If you disclose or take confidential or proprietary information, I think it’s gonna turn on what you do with that information,” says Justin Burns, an employment litigation attorney at McMoran, O’Connor, Bramley & Burns in Manasquan, New Jersey. His comments highlight how important it is for a whistleblower to carefully handle the information included in the whistleblowing activity.

1. False Reporting 

Knowingly making false claims against a company or organization creates liability for the individual reporting. These false claims can have unwarranted negative consequences. The company’s reporters have a right to seek compensation for the damages suffered due to the knowingly false whistleblower report. 

2. Classified Information 

Whistleblowers are not protected from reporting abuse, fraud, or waste that requires the disclosure of classified information. The only way around this is to comply with the rules and laws governing the transmission and handling of the related classified information.

If you have a security clearance and routinely handle classified information, consulting an attorney before taking whistleblowing steps will help protect you from potential liability or criminal consequences for disclosing classified information. The Inspector General Act outlines the process for filing a whistleblower report that requires the disclosure of classified information. 

Whistleblowing Procedures 

Whistleblowers must follow specific procedures. While your actions may be morally and ethically correct, whistleblower protection may not apply if proper procedures are not followed. Depending on the type of violation of the law, different types of evidence are needed to validate the whistleblower’s claims. 

Enforcing State-Level Protections 

Thirty-three states have state laws protecting whistleblowers. The laws in these states can vary in who they protect. Depending on the state, state, public, or private employees could qualify. Some states protect a single category of employees, while others protect multiple. A small percentage protects all employees. 

Burns explains that employees have multiple levels of protection, depending on the type of claim they intend to bring. “For example, the New Jersey Supreme Court has taken on that issue and concluded that even if somebody is misclassified or treated as an independent contractor, they can still bring a claim under our state’s whistleblower statute if they can satisfy certain tests, which is essentially the equivalent of the ABC test.”

What to Do If You’ve Been Fired for Whistleblowing

Employers may take one or several adverse actions against individuals they suspect to be the whistleblower. If a whistleblower is on the receiving end of these retaliatory actions, they may have a retaliation claim. To prove wrongful termination, a whistleblower will need to show causation. There must be a direct link between the whistleblower’s reporting and the organization’s adverse actions against them. Adverse employment actions could include: 

  • Demotion, firing, or laying off 
  • Denial of promotion 
  • Reduction of hours or pay
  • Denying benefits
  • Intimidation, harassment, or discrimination
  • Making threats
  • Excess disciplining

Sometimes, adverse actions aren’t as obvious as the listed actions. An organization may not demote someone, but it could move them to less desirable working conditions or exclude them from valuable training meetings that all other employees attend. It could also be a change in social inclusion in the workplace. Perhaps they exclude an employee by mocking, isolating, or ostracizing them. 

Documentation leading up to and after the whistleblowing is essential. This is how someone will prove that the adverse actions directly result from the reporting. Similar to other lawsuits, there is a time limit to filing a wrongful termination or retaliation claim. Speaking with a lawyer as soon as possible will help whistleblowers protect their rights. Retaining a lawyer before even filing the whistleblower report can be smart. A lawyer can provide guidance on how to legally document the actions taken. For example, recording conversations can create valuable documentation. However, states have varying laws about recording consent. Violating these laws can open someone up to liability. 

Whistleblowers who experience termination or workplace discrimination may have several remedies available to them. If they successfully prove a whistleblower retaliation claim, they could receive position reinstatement within the organization. However, many employees do not want to return to a company after all they have experienced. 

Other remedies include payment of back wages with interest. Depending on the company’s actions, a whistleblower could also receive compensation for lost future career opportunities, mental suffering, or physical pain. They could also be awarded reasonable attorney’s fees and litigation costs. Some jurisdictions may award punitive damages if the company took especially egregious actions. 

Talk With an Experienced Employment Lawyer

If you know of wrongdoing within the company or government agency that you work for, you may feel a moral or ethical obligation to become a whistleblower. Before taking action, consider speaking with a wrongful termination lawyer for a case evaluation. “Oftentimes, an attorney may be able to give better advice to either protect that individual from retaliation or put that individual in a better position in case they are retaliated against,” says Burns. “There are definitely a lot of benefits for an employee to consult with an attorney before they are subject to an adverse employment action like a termination.”

Working with a lawyer from the beginning will help you protect your legal rights and protect yourself from potential liability. Visit the Super Lawyers directory to begin your search for an experienced wrongful termination lawyer. For more information on these legal issues, see our overviews on when to report wrongful termination and how to know if you have a wrongful termination claim.  

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