The employment sector is increasingly becoming litigious as existing labor and employment laws become modified to accommodate or eliminate this or that provision while others are being enacted. However, most of these laws are complex; thus, in addition to understanding their applicability to specific employment issues and jurisdictions, one must be aware of their statute of limitations, where applicable. Regardless, many people, particularly employees, are ready, some to the point of even being zealous, to take hasty legal actions at the slightest provocation, particularly when they feel that their rights are being infringed upon. Among others, discrimination, retaliation, and whistleblowing are significant employment issues most likely to be litigated.

With that in mind, it is imperative for an employer to understand how to defend against such issues whenever they arise, especially when an employee brings a lawsuit in a court of law. As usual, we are diligent at providing information aimed at keeping employers informed and ahead of the game when it comes to pertinent issues of modern lawsuits that often put their time, money, and reputation at stake. In this regard, this discussion is based on a key training video titled “Defending Against Retaliation & Whistleblower Claims” and prepared and narrated by the one and only Vinny Miletti Esq.

By way of backdrop, it is advisable that you seek the services of a professional lawyer for job-related legal concerns, who will have your six as you move from point A to point B during the litigation process. Our doors at Miletti Law® are always open, and our team, led by Vinny, is always ready to provide you with the best, most reliable, and most efficient legal representation. Tick-tock, we are just an email or call away and always set to hit the ground running.

Well, shall we boil down to it? I bet that is a yes!

On the one hand, in order to defend against retaliation claims, you need to have several tips on your fingertips and have a number of things ironed out.

First and foremost, it is critical to understand that federal and state laws take alleged retaliatory actions, including those arising from whistleblowing (since both may often go hand in hand), and retaliation cases seriously. In fact, a number of laws, including, but not limited to, the False Claims Act (FCA), State and Federal Labor Laws (such as the New York Labor Law), the Equal Pay Act, the Americans with Disabilities Act (ADA), and Title VII (a key provision of the Civil Rights Act of 1964) have specific provisions that prohibit employers from retaliating against employees who engage in legally protected activities.

With that in mind, you also need to understand the source of the retaliation or whistleblower claim(s). Most of the time, you, as the employer, may already be aware of the incident giving rise to the issue. If not, due diligence is required on your part because while retaliating against an employee is illegal, being involved in a retaliation lawsuit is also bad for business. Here, one of the most critical questions you should be able to answer is whether an act is truly and actually retaliatory or not. In most cases, retaliation claims are the outcome of one or more adverse actions taking place within or without the employment arena. Feel free to read our blog titled “What Are Some Examples of Retaliation in the Workplace?” and accessible through https://milettilaw.com/what-are-some-examples-of-retaliation-in-the-workplace/, where we mentioned that in addition to termination or firing, a range of other adverse actions against an employee can also qualify as forms of retaliation.

However, it is critical to understand that from a legal perspective, retaliation is considered to occur when an employer (directly or through their administrator, supervisor, or manager) carries out an adverse action against an employee who takes part in a protected activity. For a close-up of the meaning of “protected activity,” we also invite you to read another blog titled “Whistleblowing & Whistleblower Protections under the New York Labor Law” and accessible through https://milettilaw.com/whistleblowing-whistleblower-protections-under-the-new-york-labor-law/.

Moving on, here is a key tip for any employer who finds themselves in the quagmire of a retaliation claim. A proper business judgment, or rather what is legally known as the “business judgment rule,” is a paramount and significant defense for any kind of retaliation, discrimination, or harassment claim for the employer. As an employer, you should be able to establish that you took the alleged action in good faith, for a proper cause, and that you did not have a material interest in the specific matter that led to the alleged adverse action. This means that you must be able to expressly provide a rationale and basis as to why you took the alleged adverse action. In order to do that, you may need to look into a number of things beforehand. What does the employment file say? Did you enter into an employment and/or contractual agreement with the employee? What were the employee and employer obligations in such an employment agreement? Can any of these provide a rationale for the proper business judgment?

On the other hand, due diligence and a similar process, such as explained above, are also required to defend against whistleblower claims. Generally, a whistleblower is an individual who reveals or reports certain types of misconduct, activities, violations, or wrongdoings within a public or private organization. While they may be perceived as fraudulent, unsafe, illicit, immoral, or illegal, such violations and wrongdoings may include but are not limited to, financial misconduct, abuse, fraud, and discrimination, among others.

Accordingly, you need to be aware of state and federal laws that have provisions for whistleblower protections. For instance, the New York Labor Law has specific provisions outlining whistleblowing and whistleblower protections. In the blog mentioned above and accessible through https://milettilaw.com/whistleblowing-whistleblower-protections-under-the-new-york-labor-law/, we indicated that pursuant to N.Y. Lab. Law § 740, employers are prohibited from retaliating against any employee who threatens to disclose or discloses to a public body or supervisor a practice or policy of an employer, which constitutes healthcare fraud or that poses a specific or substantial danger to public safety or health or even violates the law. Notably, this law also protects employees who refuse to take part and/or engage in illegal practice or policy that poses a specific or substantial danger to public safety or health. These are some of the protected activities recognizable under the law and that you must be aware of.

Still, as discussed in another blog titled “Whistleblower Protections under the False Claims Act (FCA)” and accessible through https://milettilaw.com/whistleblower-protections-under-the-false-claims-act-fca/, we noted that pursuant to 31 USC § 3730(h)(1), the FCA protects all agents, contractors, and employees from retaliation in the form of harassment, threats, suspension, demotion, discharge, or any other manner of discrimination against the terms and conditions of employment should they engage in protected activity such as reporting violations. Again, all these provisions revolve around whistleblowing and whistleblower protections.

Well, here is a caveat to these claims – one thing that makes a whistleblower claim unique is the fact that it is generally based on an employee’s belief that whatever you, as the employer, are doing (or did) is illegal, is a misconduct, or even a violation of a human right or law. This goes without saying that whatever the employee claims you did must not necessarily be illegal or a violation of the law. Whenever the claim is based on the employee’s belief, you may defend yourself by collecting all the breadcrumbs regarding what and how much the employee knows, piece by piece, and then comparing that with the facts of the matter. If it turns out you did something wrong, it would be in your best interest to remedy the situation as soon as possible. Should you need to involve the employee in open dialogue, then go ahead and arrest the situation before it spirals out of control. All this should be put on record and included in your paperwork.

Another key issue you need to iron out entails the employee’s position in the workplace. For instance, if an employee has been employed to work as an auditor for your books (as part of the essential functions of his/her job) and then blows the whistle after pointing out some flaws in accounting or payments, then he/she is not eligible for whistleblower protections.

Lastly, it is also crucial to mention that, as a critical step of due diligence on your part, you should check whether you have complied with laws applicable to whistleblowing and whistleblower protections. For instance, in another blog titled “Whistleblowing Exceptions in Confidential Covenants/Agreements” and accessible through https://milettilaw.com/whistleblowing-exceptions-in-confidential-covenants-agreements/, we noted that an employer should make sure that language through which “whistleblowing,” in every sense of the word, has been explicitly excepted when provisions concerning confidentiality require being included in agreements, as well as in other covenants by which whistleblowing could be deterred. Still, we also added that pursuant to 18 U.S.C. § 1833, as discussed in yet another blog titled “Provisions for Notice & Whistleblowing under the DTSA” and accessible through https://milettilaw.com/blog/f/provisions-for-notice-whistleblowing-under-the-dtsa, the Defend Trade Secrets Act (DTSA) requires exceptions and provisions that explicitly state that employees are allowed to participate in government investigations and/or cooperate with government agencies, even if it requires them to disclose trade secrets or confidential information, to be carved out in confidentiality covenants.

With that much, feel free to view our video accessible at https://www.youtube.com/watch?v=RZKEXHNQU-A and get it yourself directly from the horse’s mouth. Otherwise, in case you need further clarification regarding the information shared in the video and this blog post or require our services, we are just a call or email away!

As we continue dropping knowledge bombs every day, stay tuned for more educative videos, inspiring training, & legal advice. As usual, stay tuned for more legal guidance, training, and education.

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Always rising above the bar,

Isaac T.,

Legal Writer, Author, & Publisher.