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Whistleblower and Retaliation

Both federal and state laws protect workers from retaliation in the workplace for blowing the whistle on wrongful conduct. This also covers retaliation for blowing the whistle on wrongful conduct that is directed at the whistleblower (i.e., "you owe me overtime pay," with the answer, "well then you are fired"). These whistleblower protections are typically found directly in the underlying statute and each has its own distinct enforcement mechanisms.

One broad category under both federal law and state law is retaliation for opposing discrimination in the workplace (that includes race, gender, national origin, age, disability and sexual orientation) or making a charge, testifying, assisting or participating in any manner in an investigation, proceeding, or litigation regarding such discriminatory practices. Federal claims for retaliation must be brought to the Equal Employment Opportunity Commission in within either 180 or 300 days (depending on the state) after the retaliatory conduct. State claims for retaliation can be brought either directly to court (within three years) or to the New York State Division of Human Rights (within one year).

Another broad category is retaliation for objecting to wage and hour payroll violations. If you have made any complaints regarding your rate of pay, minimum wage, pay stubs, overtime, timing of payment of wages, etc., you are protected from retaliatory conduct by the employer under both the federal and state wage and hour laws and these claims can be brought directly to federal (within either two or three years depending on the facts) or state court (within six years).

Federal and state laws provide other more specific whistleblower protections, for example:

(i) Workplace Safety. Workers who report workplace safety issues to OSHA are protected from retaliatory personnel actions. Claims for whistleblower protection are brought directly to OSHA and must be made within thirty days of the retaliatory personnel action.

(ii) Union Activity. Both public and private sector workers are protected from retaliatory action by the employer because they participate in union activity and because they either provide testimony or file charges regarding improper employer conduct in regards to such union activity. The deadline for making such claims ranges between four months and one year depending on the context.

(iii) Health Care Practices. New York State law has specific protections for workers in the health care field who challenge practices that the worker reasonably believes constitutes improper quality of patient care or health care fraud. Such claims are brought in state court and must be brought within two years of the adverse employment action.

(iv) Public Health or Safety. New York State law has a second whistleblower provision that protects individuals from retaliation in the workplace because they threaten to, or because they in fact report practices that are in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety. These claims must also be brought within one year of the retaliatory conduct.

Federal law has public health and safety whistleblower protection not only for workplace safety (see OSHA, above) but also things like Solid Waste Disposal, Safe Drinking Water and Toxic Substances Control. These laws and their procedural requirements vary.
Damages available for whistleblower retaliation vary depending on which legal provision you are relying on and could include backpay, reinstatement or frontpay, compensatory damages and payment by the employer of attorneys fees and costs.

Call Charny & Wheeler for a free telephone consultation to see if you have colorable claims under these federal and state laws.

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