It is not uncommon for employees in the workplace to complain about their hours, their pay, or how they are treated by their supervisor or co-workers or the safety standards at their workplace (or lack thereof). So when do workers expressing workplace gripes turn into whistleblowers and how should an employer address such situations? This is a key issue with which employers are currently faced and which they should address head-on.
The number of retaliation claims continues to rise as do the protections and rewards provided to employees who act as whistleblowers. For example, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), whose final rules took effect in August 2011, created monetary awards for whistleblowers who provide original information to the Securities and Exchange Commission or Commodity Futures Trading Commission regarding corporate fraud or misconduct, strengthened the whistleblower protection provisions already in place in the Sarbanes Oxley Act and the False Claims Act and created additional whistleblower retaliation causes of action. This is the first program that was created to incentivize employees to blow the whistle on corporate fraud and misconduct. Further, despite the fact that the Dodd-Frank Act monetarily incentivizes employees to blow the whistle, completely absent from the Act is any requirement that the whistleblower must first report initial findings through a company’s internal compliance program. The Sarbanes-Oxley Act, the Occupational Safety and Health Act, the False Claims Act, the Dodd-Frank Act and a myriad of other federal and state laws provide a network of protections for whistleblowers who lodge complaints regarding everything from age discrimination to wage and hour violations to corporate and securities fraud and misconduct. In fiscal year 2011, 37.4 percent of the charges filed with the EEOC contained retaliation claims. This is up from approximately 27 percent in fiscal year 2002. Thus, it is important to understand how to handle and avoid costly retaliation claims.
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