Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.

Who Owns My Social Media Contacts and Posts?

Most employees think their social media is none of their employer’s business. So, who owns your social media contacts and posts? While you may think you own your contacts and posts online, the answer may depend on what agreements you’ve signed with your employer.

When you leave, it is possible for your former employer to make a claim to some or all of your social media contacts or posts.

My guest post on Monster.com tells what you need to know about who owns your social media when you leave your job.

Thanks to my friends over at MonsterThinking for continuing to ask me to post. It's such an honor to be asked to guest blog for the nation's best job hunting site (and the one I use when I need to hire employees).

Guest Blog Post on Social Media and Employment Law: Six Things You Need to Know

Whether you’re an occasional Facebooker, a Twitter fanatic, or a well-known blogger, you need to understand the risks you face every time you post or click at work and at home. If you think what you post is private, or that you can click without consequences, think again. If you make a mistake with your social media, it can cost you your job. I did a guest blog post this week on MonsterThinking (Monster.com's excellent blog on employment and career issues) where I talk about six things you need to know about social media and employment law before you post or click.

Check it out here.

I've added MonsterThinking.com to my blogroll too. It's an excellent source of information for employees on the latest issues affecting you at work. Keep checking it out - I know I will.

Top Ten Employment Laws You Think Exist – That Don’t

Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.

• Wrongful termination

If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.

• Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

• Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk if your employer is big enough. Some states also offer protection for nursing moms taking breaks.

• Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.

• Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

• Privacy

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

• Discrimination

Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

• Individual liability

As much as it may give you joy to sue your boss personally, you probably can’t. Federal and many state discrimination laws, Family and Medical Leave Act (in some states - the courts disagree on this), and most other laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.

Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:

http://www.contactingthecongress.org/

http://www.congress.org

Here's a website with contact information for elected officials at the state and federal level:

http://www.usa.gov/Contact/Elected.shtml

Yippee - I Can Insult My Boss on Facebook Now!

You’ve probably heard about the case the National Labor Relations Board brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. Well, it settled. So I expect to hear about a bunch of employees posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.

Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.

The National Labor Relations Act and Concerted Activity

In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.

Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.

The Facebook Case and the Facts

The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.

The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.

A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.

Protesting Working Conditions Might Be Protected

While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.

So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.

Why You Should Keep Your Mouth Shut

I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.

Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.

No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.

You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.

The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.

Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?

No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.

But I’m Sure My Company Did Something Illegal

So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.

They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.

If you’re dismissed, you can appeal to the General Counsel’s office.

If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.

If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.

When in doubt, contact an employment lawyer in your state to get more information about your rights.

The Genetic Information Nondiscrimination Act and The Mentalist

A recent episode of The Mentalist showed the very first violation of the Genetic Information Non-Discrimination Act (GINA) that I’ve seen on TV. If you don’t know about GINA, it’s the law that says employers can’t discriminate based upon the genetic information of an employee. I think The Mentalist crossed that line in the latest episode. I talked about this from a writer’s perspective previously. But now, wearing my lawyer hat, I want to talk about why it’s a violation.

GINA says:

(a) Discrimination Based on Genetic Information.--It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

The writers didn’t mean to have their character violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep (it’s wrong, wrong, wrong!). Okay, a little rant.

No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?

The term “genetic information” is defined under the Act as:

(A) In general.--The term “genetic information” means, with respect to any individual, information about--

(i) such individual’s genetic tests,

(ii) the genetic tests of family members of such individual, and

(iii) the manifestation of a disease or disorder in family members of such individual.

Here, the investigator decided that Rigsby’s father’s criminal behavior was a manifestation of a genetic disorder. Once the investigator decided that Rigsby’s father, and therefore Rigsby, had a genetic condition, he can’t discriminate against him because of it. Specifically, he can’t “classify [him] in any way that would deprive or tend to deprive [him] of employment opportunities or otherwise adversely affect the status of the employee . . . .” That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.

I adore Simon Baker and will continue watching just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.

From a lawyer’s perspective, I hate it when shows get the law wrong because my clients learn what they know about employment law from TV way more than they learn it from reading their handbooks or (sadly) this blog. And most shows get this stuff laughably wrong. So, dear workers of the world, it’s fiction! Don’t rely on TV shows for legal advice. Ever.

Retaliation Against Whistleblowers - When Are You Protected?

While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there’s no First Amendment in the private workplace. If you work for government, you do have free speech rights, but they are limited. Sassing your boss or saying she’s incompetent is not protected speech.

If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.

Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.

1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.

The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.

Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.

2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.

3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?

You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.

4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.

The Whistleblower Laws

The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.

The federal whistleblower laws are:

The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.

OSHA enforces these anti-retaliation laws:

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148


Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.

The Whistleblower Protection Act protects Federal employee whistleblowers.

Military Whistleblower Protection Act protects whistleblowers in the U.S. military

False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.

States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*

States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*

*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.

Other Types Of Retaliation

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.

Deadlines/Statutes of Limitations

If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.

Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.

Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.

Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.


Donna’s tips:

a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.

b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.

c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.

d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.

f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.