What Is Retaliation?
Employees cannot be legally terminated, harassed or subjected to such retaliation for opposing illegal activity. A termination that is motivated by retaliation by an employer or supervisor to punish the employee for coming forward is called a retaliatory termination and could entitle the employee to significant damages, including lost wages, punitive damages, and damages for emotional distress. Whistleblower claims are amongst the claims most likely to result in punitive damages, emotional distress, and wage loss.
Retaliation against employees can take many forms other than termination. For example, retaliation may occur where there has been a demotion, pay cuts, denial of raises or monetary benefits, harassment or hostile work environment. It might also take the form of threats committed by the employer or a supervisor. Sometimes the retaliation is obvious. Sometimes, it’s not. For example, an employee might be subtly retaliated against by being excluded from lunches, meetings, being denied training, or being treated rudely or in a derogatory manner by a supervisor. An employee who is terminated after 25 years of a perfect employment history the day after complaining of illegal activity has a clear case. However, few cases are that extreme. Most employers are smart enough to “lie in wait” after our make your complaint of illegal activity. Many employers seek to fabricate a record of poor job performance after an employee makes a complaint in an effort to mask the retaliation.
However, an experienced retaliation attorney can obtain evidence through the discovery process in litigation to uncover the fraud. As officers of the court, attorneys are empowered to obtain all documents from the employer related to your job performance, to obtain internal emails describing the retaliation, and to examine the job performance and performance counseling to other employees to show that the complaining employee has been wrongfully targeted. Further, we can issue subpoenas to witnesses outside the company who knowledge of the reasons stated for the termination to challenge the basis for the termination.
It’s really important if you believe you are being subjected to retaliation to keep careful records of everything that’s going on at work. You may wish to record key conversations and events in a diary, however, you should probably not do so while working on the company’s time. Many employees seek to retain key emails pertaining to their performance of their work duties so that they have access to key evidence in the event that the matter goes into litigation.
If you believe you might be the victim of retaliation, you probably are. Stay alert. Do your best to do your job so you don’t give your employer any ammunition to use to terminate you. And be as calm and patient as you can for the time being. And, it’s very important for you not to fight these battles on your own. An experienced retaliation/whistleblower attorney can really help you get peace of mind and take the steps necessary to protect your rights in a very difficult situation.
So, if you feel you are working for an employer who is violating the law, don’t stay silent. Do something. And if you are punished for complaining, rest assured that the antiretaliation attorneys at the Law Offices of Daniel Feder are here to help you.
The antiretaliation laws, also known as whistleblower laws, are very complex. Frequently, an employee isn’t certain that the employer’s conduct is illegal, so the employee may remain silent and not oppose the practice. Put simply, it’s hard to figure out whether or not the employer has a retaliation case, or whether the employer’s conduct is a violation of a statute, without the skillful guidance of an experienced whistleblower and retaliation lawyer. The Law Offices of Daniel Feder provide free attorney consultations to employees seeking guidance with respect to illegal conduct by their employer. And, we’re here to protect you if you’ve already been punished for making your complaint.
What Is A Retaliation/Whistleblower Case?
The first step in the process of protecting yourself is to identify whether or not you might have a retaliation case, to determine whether the employer’s conduct is illegal, and, if so, what do to about it. Put simply, a whistleblower case is one in which an employee is subject to an adverse employment action by an employer for opposing or refusing to participate in an illegal practice by the employer. To the layperson, this definition might lack meaning. So, perhaps the best way to get a good sense of a whistleblower case is to review the cases of some of the more prominent whistleblowers known through the media and American pop culture. And, if you don’t think it’s worth complaining about illegal activities by your employer, think again. Whistleblower cases have resulted in some of the largest payouts to plaintiff employees and the recoveries are on the rise.
- Whistleblower cases have been popularized in cinema. The heroism demonstrated by these whistleblowers is remarkable, as are their contributions to the health and safety of millions of Americans.
- Some of the top whistleblower movies of all time, in no particular order, are (1) Serpico with Al Pacino; (2) The Informant with Matt Damon; (3) The Constant Gardener with Ralph Fiennes; (4) Silkwood with Meryl Streep; (5) Michael Clayton with George Clooney; (6) Erin Brokowitz with Julia Roberts; (7) the China Syndrome with Jane Fonda; (8) On the Waterfront with Marlon Brando; (9) All the President’s Men with Dustin Hoffman and Robert Redford; (10) A Few Good Men with Tom Cruise; and (11) The Insider with Russell Crowe. For some wonderful clips from these movies, with thoughtful commentary, there’s a wonderful link on You Tube under the title “Top Whistleblower Movies.”
- For inspiration concerning your own potential whistleblower case, you can review the gallery of the most famous whistleblowers in U.S. history.
- Just in the last fiscal year, the federal government was able to recover a record $5.69 billion under the False Claims Act. This means that the recoveries paid to whistleblowers for coming forward with the complaints is are the highest ever. Whistleblowers who file false claims lawsuits can receive up to 30 percent of the money the defendant company is required to pays the government. The total aggregate amount of all of the payouts to whistleblowers for violations of the False Claims Act added up to $435 million. These amounts were paid out to whistleblowers primarily for mortgage, health care and defense fraud cases.
- Here’s a summary of the largest False Claims Act settlements and the whistleblower rewards from the last fiscal year:
- Johnson & Johnson Settlement: The pharmaceutical giant was required to pay $2.2 billion “to resolve criminal and civil liability arising from allegations relating to the prescription drugs Risperdal, Invega and Natrecor, including promotion for uses not approved as safe and effective by the Food and Drug Administration and payment of kickbacks to physicians and to the nation’s largest long-term care pharmacy provider.” This result is one of the largest health care fraud settlements in U.S. history, according to reports by the Department of Justice. As a result of this settlement under the FCA, the whistleblowers who initiated the lawsuit received $167.7 million divided among whistleblowers in Pennsylvania ($112 million), Massachusetts ($27.7 million) and California ($28 million).
- JP Morgan Chase: Settlement: $614 million “for violating the False Claims Act by knowingly originating and underwriting noncompliant mortgage loans submitted for insurance coverage and guarantees by the Department of Housing and Urban Development’s Federal Housing Administration and the Department of Veterans Affairs,” according to the Department of Justice. The whistleblower who brought the case forward received $63.9 million. His name is Keith Edwards, and he was a former assistant vice president supervising a government-insuring unit for JP Morgan. He received this amount for providing tips to the government that resulted eventually in the company’s commitment to pay $614 million.
- Bank of America Settlement: $16.65 billion – this is the largest civil settlement with a single entity in American history – “related to the packaging, marketing, sale, arrangement, structuring and issuance of RMBS, collateralized debt obligations, and the bank’s practices concerning the underwriting and origination of mortgage loans.” Former Countrywide Financial executive Edward O’Donnell, the whistleblower, in this case, is collecting more than $57 million. This amount will be paid to him for his assistance provided to federal prosecutors force Bank of America to pay $16.65 billion for its role in churning out shoddy mortgages and related securities before the financial crisis.
- Amedisys Inc.Settlement: $150 million, which amount is paid “to the federal government to resolve allegations that from 2008 to 2010 they billed Medicare for nursing and therapy services that were medically unnecessary or provided to patients who were not homebound, and otherwise misrepresented patients’ conditions to increase payments,” according to the Department of Justice. Of this amount, the Whistleblowers’ share was $26 million, which amount is to be split collectively among former Amedisys employees.
- Omnicare Inc. Settlement: $124.4 million “for allegedly offering improper financial incentives to nursing facilities in return for their continued patronage of Omnicare to supply drugs to elderly Medicare and Medicaid patients.” Whistleblowers share: $17.24 million will be awarded to Donald Gale, a former Omnicare employee.
- Retaliation cases can be brought against government entities. In the case of Richard “Rick” Higbie, Mr. Higbie was allegedly subjected to years of harassment and retaliation by the Northern District of Texas U.S. attorney’s office under the direction of the State Department. Higbie is a veteran with great distinction of the Diplomatic Security Services. The DSS is a division of the State Department that investigates crimes and provides protection to diplomats oversee
- The harassment starting when his infant daughter was diagnosed with a rare genetic disorder. His supervisors suggested that he quit his job, a request that violated his legal rights. According to Higbie’s allegations, his supervisors claimed that his child’s illness prevented him from properly discharging his job duties overseas. Higbie filed a discrimination lawsuit for violations of the Americans With Disabilities Act against the government. After he did so, his supervisors allegedly subjected him to a campaign of retaliation, including excluding him from important meetings, deleting his emails over a four-year period, removing computers from his office, and engaging in harassing debt collection techniques against his father.
- The Law Offices of Daniel Feder are currently handling several retaliation cases. In one, an employee was terminated for complaining about her employer’s efforts to submit false and misleading financial statements to secure a bank loan and to submit inaccurate tax returns to the IRS. In another, an employee was wrongfully terminated for complaining about the presence of mold in his office, which caused him severe respiratory disorders. In another case, an employee reported her employer failed to adhere to applicable regulations governing a day care center and was terminated. In other cases handled by my offices, employees have been wrongfully terminated for complaining about missing their meal periods, not getting paid for overtime hours, and being improperly classified as exempt.
Next up: What Laws Protect California Whistleblowers from Retaliation?