When is Termination after Whistleblowing Illegal?

Many employees who file complaints against their employer find themselves out of a job. The question is — when is being fired or being subject to other adverse employment actions just unfair, and when is it illegal?

The answer is not always clear; this is a complex issue and the circumstances vary from case to case.

When is termination after whistleblowing illegal?

To better understand unlawful termination/retaliation, let us compare these two examples.

1. Sandy was fired from her nursing home job after she complained about a supervisor who yelled at other employees and treated them rudely. Her termination is not illegal because unless the employee is protected under a contract or she was reporting a violation of the law, employers generally retain the right to fire employees at any time.

2. Mark was fired from his nursing home job because he reported suspected abuse of a patient to the patient’s family. In his case, the termination is illegal because Ohio Revised Code § 4113.52 prohibits firing an employee for reporting suspected abuse or neglect of a patient.

So, what is the difference? The litmus test involves the nature of the complaint. For unlawful termination or other illegal retaliation to occur, the employee must have blown the whistle on a protected activity or violation of a law or regulation.

Adverse employment actions that result from employee complaints about things that are not clearly illegal are usually not themselves illegal. A complaint, for example, about the sexual harassment or racial discrimination against another employee would be protected because that harassment or discrimination is illegal. However, in Sandy’s case, the unfair treatment of other employees was not illegal and therefore, her termination is not illegal.

What kinds of complaints do whistleblowing laws protect?

Federal laws offer workers protections against retaliation when they report certain activities. If you filed a report or complaint concerning your employer’s violation of any of the following, you may be legally protected from retaliation:

• Workplace safety and health violations
• Workplace injuries, illnesses, or fatalities
• Airline, commercial motor carrier, or motor vehicle safety
• Violation of consumer product, environmental, or financial laws
• Corporate fraud by publicly traded companies
• Attempts to defraud the government
• Health insurance fraud
• Nuclear and pipeline safety laws
• Violations of railroad or maritime laws
• Securities law violations

Whistleblower laws prohibit employers from retaliating against employees for bringing certain illegal company actions to public light. If you blew the whistle on your employer’s violation and your employer subsequently retaliated against you, you may have a viable lawsuit. There are also Ohio state laws that may provide protection for other kinds of whistleblowing. However, the laws can be complicated and the requirements to properly report violations in order to have whistleblower protection can be confusing and difficult.

What elements must I establish to validate a retaliation claim?

Unfair termination and wrongful, illegal termination are not synonymous. To prevail in a lawsuit, most whistleblower laws require the employee to prove the following:

• You engaged in a protected activity, such as reporting a violation of a federal safety law or some other activity that the law protects you for reporting.
• Your employer knew you were involved in the activity, i.e., that you made a report or complaint.
• You suffered an adverse employment action, e.g., pay cut, demotion, termination, intimidation, suspension, denial of a promotion, moving you to a less favorable shift or position, etc. in retaliation for your making the report or complaint.

Although these elements seem straightforward, retaliation claims can be challenging. They are multi-faceted and require careful investigation and ample evidence. Our attorneys have decades of experience investigating whistleblowing cases and know what it takes to prove your case.

What do I do if I think my employer has retaliated against me for whistleblowing?

If you believe your employer took adverse employment action against you after you reported an unlawful or unsafe activity, there are several things you can do to protect your rights:

• Document all incidents of adverse action, including dates, times, and names of those with whom you spoke about the issue.
• Keep copies of all correspondence with your employer.
• Talk to a Cincinnati employment law attorney about your case. You might be entitled to damages for lost wages and benefits and more.

Call Robert A. Klingler Co., L.P.A. to schedule a consultation with an employment lawyer in Ohio: 513-665-9500.