Can Florida Employees Can Be Fired For Testifying Against Employers?

 Florida has a statute that was clearly intended to protect employees who testify against employers: 

92.57 Termination of employment of witness prohibited.—A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person s testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney s fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person.

Every lawyer I knew in Florida for 35 years has thought this protected witnesses who testified in depositions under subpoena. But a Florida appeals court ruled this year that a deposition is not a "judicial proceeding" and thus employees can be fired for testifying against their employers.

So is that it? Can employers retaliate against employees for testifying against them, even if they are subpoenaed to do so?

Not so fast, evil employers. Because employees are still protected under several anti-retaliation statutes. First, if they are testifying about race, age, sex, national origin, religious, disability or other illegal discrimination or discriminatory harassment, they are protected under anti-retaliation provisions of Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and/or the Florida Civil Rights Act.

Second, the Florida Whistleblower Act protects employees who are fired for objecting to or refusing to participate in illegal activity of their employer. So if you are called to testify, make sure you say you object to whatever it is that they did that was a violation of a statute, government regulation, or ordinance. This also includes discrimination, but covers a myriad of other legal violations. Unfortunately, if it's just something like a breach of contract or other common law violation, you aren't protected under this statute.

There are lots of whistleblower laws out there, so if you are called to testify in a deposition and your testimony will hurt your employer, you will want to get some legal advice as to how to protect yourself before you go.

And the Florida legislature needs to fix this statute, because firing someone who is subpoenaed should be illegal, whether for a deposition or an actual court hearing.

The FBI Director Isn't A Protected Whistleblower, But You May Be

Some of you have already seen my article in Vox, Why It's So Hard To Say No To Your Boss - Even If You're The Directof of the FBI. In that article, I mention that Mr. Comey isn't protected under whistleblower laws. I wanted to follow that up with hope for the rest of working Americans. Here are some laws that protect those of us who aren’t the Director of the FBI:

·       Federal employees: Most federal employees and applicants for federal jobs are protected against retaliation for any disclosure of information they reasonably believe shows any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

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

·       Employees of government contractors: The False Claims Act  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. If you win, you can get big bucks because you get a percentage of the recovery, but there are lots of loopholes so get good legal advice. This law 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.

·       State Whistleblower Laws: Some states have whistleblower protection laws for most employees, government or private, and others offer whistleblower protection to government, but not private employees. Some states have no whistleblower protections. Senator Rubio’s home state of Florida, for example, has a whistleblower law that protects employees who object to or refuse to participate in illegal activities.

·       Laws With Built-In Protection: Some laws build in whistleblower protections for anyone who reports or objects to breaking them. Laws that have built-in protections against retaliation include federal and state anti-discrimination laws, Fair Labor Standards Act and state wage/overtime  laws, Occupational Safety & Health Act, Surface Transportation Assistance Act, Asbestos Hazard Emergency Response Act, International Safety Container Act, Energy Reorganization Act of 1974, Clean Air Act, Safe Drinking Water Act, Federal Water Pollution Control Act, Toxic Substances Control Act, Solid Waste Disposal Act, Comprehensive Environmental Response, Compensation, and Liability Act, Wendell H. Ford Aviation Investment and Reform Act, Pipeline Safety Improvement Act, Federal Railroad Safety Act, National Transit Systems Security Act, Consumer Product Safety Improvement Act, and Affordable Care Act.

·       Concerted action to improve working conditions: The National Labor Relations Act protects most non-government, non-supervisory employees from being retaliated against if they get together to discuss or to try to improve the terms and conditions of their employment. This is one law that might actually help you, assuming you aren’t a supervisor, if you want to complain that your boss is a jerk, about bullying, or about other activity that isn’t illegal.

There are different deadlines for taking legal action under each of these laws, and some are pretty short, so don’t wait too long if you think you were retaliated against. Talk to an employee-side employment lawyer if you are in doubt about your rights.

I'd also add this: if your boss is asking you to break the law, it’s time to start looking for another job and get the heck out of there.

Is The Florida Commission On Human Relations A Malignant Force Against Employees?

The Florida Commission on Human Relations is the state equivalent of EEOC. In order to sue under the Florida Civil Rights Act, you must first file a Charge of Discrimination with them and let them investigate. They have a deal with EEOC that, if you file in Florida with EEOC you're automatically filed with them, and vice versa. Truthfully, I rarely deal with FCHR, because I usually file with EEOC.

The Florida chapter of the National Employment Lawyers Association, of which I am a proud member, just issued a scathing report about FCHR. The report refers to the human rights commission as a highly politicized “rogue agency.” NELA calls FCHR a “destructive and malignant force” that they say has trampled on the legal rights of employees for years. They say FCHR staff and leaders have acted illegally or ineptly.

How did a state agency that is supposed to protect employee rights go so wrong?

The trouble, NELA says, begins with a clause in the Florida Civil Rights Act, a "unique feature under which FCHR could prevent a case under FCRA from going to court by making a 'no-cause' finding within 180 days of intake." EEOC does not make a "no cause" finding (I take some credit for this, because they used to, but that's another story). EEOC's finding says, basically, that they are unable to determine whether or not cause exists, and that the employee has the right to sue. FCHR, however, finds "no cause." If they do so within 180 days of filing (and they seem to rush to do this), then the employee loses the right to sue and their sole remedy is with FCHR.

Another problem with the agency is that they have taken a decidedly anti-employee bent. The agency has worked to curtail employee rights under the FCRA. Instead of promoting workplace equality, the agency apparently sees its mission as one to combat frivolous suits. NELA says this: "Top staff of FCHR began describing the effort to combat frivolous discrimination suits as “equally important” as establishing equal opportunity. On its web page, the agency began touting its ability to settle cases for a fraction of their value."

Another issue NELA raises is FCHR's repeated denial that they have jurisdiction over cases:

The agency routinely dismisses cases that fall squarely within the FCRA or the Florida Public Whistleblower Act by falsely claiming to lack “jurisdiction” over them. FCHR thus clears its docket of intakes without even having to give the case a serious reading, let alone having to investigate it or make a determination. This has cleared FCHR’s backlog, but in doing so, it has vandalized the rights of thousands of Floridians and emboldened employers with discriminatory employment practices.

NELA offers these possible solutions:

• Abolish the agency;
• Repeal the statutory provision allowing a “no-cause” finding to impair
access to courts;
• Adopt a range of self-help solutions that can be undertaken by
individuals, as well as efforts to involve the federal government, grand
juries, and the courts as well as the executive and legislative branches.

Of these solutions, I like the option of changing the "no cause" finding to something similar to what EEOC issues the best. FCHR shouldn't be able to deny employees the right to sue. I support EEOC and FCHR if they function as intended: to investigate discrimination (and whistleblower in the case of FCHR) claims, to try to remedy issues before they get to court, and to try to reduce or eliminate illegal employment practices.

By turning the agency on its head, making it an anti-employee and pro-discrimination agency, the State of Florida is doing the opposite of what the legislature intended. I would urge Florida legislators to take a close look at this agency and fix it. For an employee rights organization like NELA to take on a human rights agency, the abuses had to be extensive. The decision to do the report was not made lightly.

Government should protect its citizens, not trample their rights. It's that simple.

As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America

The Miami Marlins suspended new Manager Ozzie Guillen for saying: “I love Fidel Castro,” and "I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that mother-f***er is still here."

First it was reported as a suspension without pay, but it turns out it’s a suspension with pay. He had to apologize for his remarks. No question; his remarks offended most of the community his employer serves. While you may not think they were that bad, trust me: the Cuban community was offended. If you don’t follow Cuban politics, just imagine someone saying they admire the KKK, Hitler or Bin Laden and you’ll get the drift.

Did he mean to offend? Probably not. Were the company’s customers upset? Absolutely. Still, some folks expressed shock that an employer could punish an employee for espousing his opinion. “What about the First Amendment?” they cried.

I’ve said it in my book and I’ll say it again. There is no free speech in corporate America. The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn’t like what you said (or what you wore), with very few exceptions.

Mr. Guillen got off easy compared to Brooke Harris, who was fired from her job as a teacher in a charter school for teaching about the Trayvon Martin case. Why the difference? Guillen probably has a contract saying he can only be fired for cause. Martin probably has no contract to protect her, and her state, like every state in the union but Montana, is an at-will state, meaning she can be fired for any reason or no reason at all.

Not all speech is unprotected. Here are some circumstances where your speech might have some legal protection:

Concerted activity: If you get together with coworkers or take action on behalf of at least one other coworker (not just on your own behalf) to protest or try to change working conditions, you may be protected under the National Labor Relations Act (NLRA). NLRA says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Neither Mr. Guillen nor Ms. Harris fits here.

Objecting to discrimination: If you object to illegal discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or some other protected status, you are protected against retaliation by Title VII, the federal law prohibiting discrimination. Ms. Harris might have fit into this category if she were objecting to discrimination by her employer, but it doesn’t apply to objecting to other types of discrimination.

Political affiliation: Some states, counties and cities have laws prohibiting discrimination based on political affiliation. Mr. Guillen’s remarks might have fit within this category if his local government or state had such a prohibition. Had he been in the county just north of Miami, Broward County, there is an ordinance prohibiting such discrimination. Would he have filed a complaint? Doubtful. He kept his job and lost no money.

Objecting to illegal activity: If you’re objecting to an illegal activity of your employer, you might be a protected whistleblower. That certainly doesn’t help either Mr. Guillen or Ms. Harris.

Activity outside work: Some states and localities prohibit employers for firing or disciplining employees for activities outside work. However, even those laws have exceptions for activity that affects the employer’s reputation or the ability of the employee to do their job. There’s little doubt that Guillen’s comments both reflected on the Marlins and affected Guillen’s ability to get his job done, as demonstrated by the multiple protests that occurred.

Contract: This is what probably saved Mr. Guillen. If you have a contract saying you can only be fired for cause, then check what is says constitutes “cause.” Offending 70% of the customer base may well be cause (but it might not). It all depends on how it was drafted. Best read up before you give any press interviews if you think you’re protected.

Before you spout off at work (or anywhere) about something your employer might deem offensive, remember how little protection you have.

Employers are watching more and more closely. They want your Facebook password. They watch what you post on Twitter. They read your email messages at work. They look at the websites you visit. Soon, they’ll be asking to read your diary. Heck, if it’s on your work computer, they’ve probably already read it. Will they start asking for an extra copy of your house key? I predict some employer will do this within the next couple of years.

Watch what you say, and especially what you email, text or post, even while you’re at home. If you’d be embarrassed to see it on the front page of the company newspaper, you probably shouldn’t put it on your Facebook page.

There’s no free speech in corporate America. Big employer is watching.

Nepotism Is Not Illegal

            I probably get at least one inquiry a week from someone absolutely sure that they’ve been a victim of nepotism. The boss is hiring family members or friends. A family member is promoted even though she’s incompetent or inexperienced. Or even worse, they complained about the incompetent family member and were fired.

            The injustice of it all. Surely they can sue!

            Nope. Sorry. There is zero I can do about nepotism. Zip. Nada.

            Playing favorites is not illegal. Hiring relatives is not illegal. Not if you’re in the private sector. Now, if you work for government, every state has some law about conflict of interest or hiring relatives at certain level. You’ll have to check your state and local laws if you work for government and think something illegal is going on.

            But nepotism in the private sector? It’s expected. It’s mostly legal. Here’s what might be illegal in a situation involving nepotism:

            Failure to disclose: Under Sarbanes-Oxley, management has to disclose potential conflicts of interest. So hiring of relatives, while probably legal even for publicly-held companies, can’t be hidden from shareholders. The SEC can be called in to investigate allegations of undisclosed conflicts. If you object to this type of illegal behavior, you might be a protected whistleblower.

            Discrimination: If the favored few are all of the same race, religion, national origin, or other protected category, the company could be engaging in illegal discrimination.

            Sexual harassment: If the boss favors only individuals who have engaged in sexual relations with her, and you’ve turned her down, you might have a sexual harassment claim (although sexual favoritism is mostly legal).

Donna’s tips:

a.       If your boss is the owner’s niece, be nice. I don’t care if she’s incompetent. Deal with it.

b.      Don’t write a long letter complaining about the incompetent friend or relative. It can and will get you fired.

c.       If you think the company has crossed the line into illegal discrimination, or you work for a publicly-held corporation and they are treating it like a family business, you might want to talk to an attorney about potentially blowing the whistle. Just be careful. Most Sarbanes-Oxley whistleblower cases are dismissed. They are difficult to bring and difficult to win.

d.      If you see that only friends and relatives have a future at your company, start looking. Get out on your timetable rather than waiting until you’re forced to leave on their terms.

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.

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.

When Is A Whistleblower Not a Whistleblower?

I get questions like this and they make me cringe:

I wrote a long letter to the CEO complaining about my boss’s incompetence and lack of ethics. I got fired. Can I sue?

Here's what I'd like to say, but am usually more polite:

Probably not. What on earth made you write a letter like that? No, you don’t get to write emails, memoranda, letters, articles, or Facebook entries attacking your boss or the company unless you want to be fired.

Ethical violations and incompetence are not things you can complain about and be a whistleblower. If the ethical violations are also legal violations, you may be a whistleblower. However, if your boss is ripping the company off or going off on her own and breaking the law, you’re still probably not a whistleblower.

To be a whistleblower, you probably have to object to or refuse to participate in an illegal practice or activity of the company. For instance, if you object to discrimination, mortgage fraud, Medicaid fraud, dumping of pollutants, something that is a violation of a law, government regulation or ordinance, that the company knows about and condones or allows, then you may be a whistleblower.

If you’re a whistleblower and the company fires you or demotes you, then you should contact an employment attorney about your rights.

If your boss is incompetent or unethical, put up with it quietly while you look for another job.

Overview of Employee Rights

           Many employees are confused about their rights in the workplace. You may have rights you didn’t even know about, or think you have rights that don’t exist. This post will cover some basic employee rights, and try to clear up some misconceptions.

·         Discrimination

            You DO have the right to not be discriminated against based on race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories. But this right only applies if your employer is large enough. In most cases, your employer has to have at least 15 employees (for age, 20 employees). However, some states and local governments protect employees of smaller employers.

            You DON’T have the right to be of discrimination against you for being you. There are no protections for personality conflicts, weight, appearance, political beliefs (except if you work for government), non-religious beliefs, and other non-protected categories.

            You MIGHT have the right to be free of discrimination based upon sexual orientation, marital status, or other categories if your state or local government provide additional protections.

·         Harassment

You DO have the right not to be harassed due to your race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories, if your employer is big enough (see above).

You DO have the right not to be harassed if you’re a covered whistleblower, took covered Family and Medical Leave, made a worker’s compensation claim, or took some other legally protected action.

You DON’T have the right to be free of a hostile work environment that isn’t based on one of the above categories.

You DON’T have the right to be free of bullying or general harassment in the workplace.

If you complain about harassment, you DON’T have the right to be free of retaliation unless what you complained about was legally-protected harassment in one of the categories above.

·         Breaks

You DO have the right to be paid if you work through your lunch break or if your breaks last less than 20 minutes. This only applies if you are not exempt from the requirements of the Fair Labor Standards Act.

You DON’T have any federally-protected right to any rest or meal breaks. A few states do have some rest and meal break requirements, and the links are below. This is one of the most common misconceptions.

You PROBABLY have the right to take reasonable bathroom breaks. OSHA covers workplace safety and has requirements that restroom facilities be available. There’s no specific OSHA regulation about bathroom breaks, but if your employer won’t allow them, you might report them to OSHA.

·         Right to Work

If you live in a “right to work” state, you probably think you have rights you don’t. Be careful about this.

If your state is “right to work” that means you DO have the right to work in most industries without joining a union.

You DON’T necessarily have the right to work for a competitor. If you’re being asked to sign a noncompete agreement, get legal advice from a lawyer in your state. Don’t believe anyone other than a lawyer who practices employment law in your state who claims you can go ahead and sign because they won’t be enforced. Right to work simply has no effect on noncompete agreements.

You DON’T have the right to be fired only for good cause. Most states are at-will, meaning you can be fired for any reason or no reason at all unless you have a contract saying otherwise.

• Benefits

You DO have the right to get a description of your health insurance, pension, and other benefit plans.

You DO have the right to enforce the duty of the people managing your benefit plans to administer them without fraud, self-dealing or kickbacks.

You DON’T have the right to any specific benefits from your employer. Your employer doesn’t have to provide health insurance, vacation pay, sick pay, severance pay, pension or other benefits unless they have an existing plan.

You DON’T have the right to keep your insurance if the company cancels the health insurance plan.

• Contracts

            You DO have the right to understand contracts you’re being asked to sign before you sign. If you don’t understand, get advice from a lawyer before you sign.

            In some states, you DON’T have the right to refuse to sign a contract. Some states allow an employer to require you to sign away your rights to work for a competitor, get a trial if you’re a discrimination victim, or get a jury trial, and they are allowed to fire you if you refuse.

            You DON’T have the right to a jury trial, to try your case in court instead of arbitration, to work for a competitor, or to bring claims against your employer if you’ve signed away your rights, so make sure you understand what you’re agreeing to before you sign.

• Hours

            You DO have the right to be paid for all hours worked and to be paid overtime for hours worked over 40 hours if you aren’t exempt.

            You DON’T have the right to a specific schedule, to not work extra hours, or to come in late.

• Illness

            You DO have the right to take Family and Medical Leave if you’ve worked at least a year, if you work enough hours, and if your employer has 50 or more employees. But there are lots of hoops to jump through, so read your handbook and know the employer’s requirements.

            You DON’T have the right to sick leave, excessive absenteeism, take care of a sick kid, or miss work due to illness (even with a doctor’s note) unless you are covered by Family and Medical Leave.

• Disability

You DO have the right to seek reasonable accommodations for your disability that allow you to perform all the duties of your job, if your employer has at least 15 employees.

You DON’T have the right to be excused from any essential duties of your job, to light duty, or to accommodations that create an undue hardship for your employer.

• Whistleblower

            You DO have the right to report illegal activities of the employer to specific government entities, to object to or refuse to participate in certain illegal activities of the employer, and to not be retaliated against for doing so. Whistleblower laws are diverse and have lots of requirements, so make sure you’re doing what is required before you report or object to the illegal activity.

            You DON’T have the right to complain about incompetence, coworkers ripping off the company, ethical violations, unprofessionalism, or general harassment without rising retaliation. Make sure you’re protected before you complain.

• Privacy

            You DO have the right to privacy in your phone calls unless your employer meets certain legal requirements. If you think you’re being illegally recorded, contact an employment lawyer to find out your rights.

            You DO have some rights to privacy of your medical information.

            You DO have the right to not be subjected to a polygraph (except certain professions like law enforcement).

            You MAY have the right to privacy of your credit information. While many employers use credit history in their employment decisions, more states and EEOC are finding this practice to be a legal violation. It’s illegal to discriminate against you based upon a bankruptcy.

            You DON’T have the right to keep your criminal record a secret unless it’s expunged.

            You DON’T currently have the right to refuse to allow your employer to seek a credit report, but there are lots of laws in the works on this issue.

            You DON’T have the right to dress any way you want.

            You DON’T have the right to privacy in you off-duty behavior. You can be fired for things you do outside of work.

            You DON’T have the right not to be videotaped (without audio).

            You probably DON’T have the right not to have your belongings searched. Very few states provide protections. If you work for government, you are protected from being searched.

            You DON’T have the right to privacy in your workplace internet use or email.

            You probably DON’T have the right not to be drug tested. No states prohibit employment drug testing, but some do require cause for the test if it’s done while you’re employed, as opposed to pre-employment.

            You DON’T have the right to free speech. Your postings on Facebook, Twitter, your blog and other websites can get you fired. If you work for government, you have some free speech protections but they’re not unlimited.

            Conclusion

            There are entire sections of law libraries devoted to employment laws. When in doubt, consult an employment attorney before you complain, quit, sign contracts, or sue. The laws are confusing and sometimes have short deadlines and prerequisites to suit. If you think your employer or former employer is breaking the law, make sure you get legal advice.

Websites:

Department of Labor fact sheets on exemptions from the Fair Labor Standards Act http://www.dol.gov/whd/regs/compliance/fairpay/

Department of Labor fact sheet on most common exemptions: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm

List of states that have required rest periods for adults, and their requirements: http://www.dol.gov/whd/state/rest.htm

List of states that have required meal breaks for adults, and their requirements:

http://www.dol.gov/whd/state/meal.htm