WHISTLEBLOWER RETALIATION

Speaking out about your employer’s unlawful conduct can be risky. Employers rarely thank an employee who tries to stop fraudulent or unlawful conduct, especially when that conduct is making them money. Quite the opposite, in fact. Many whistleblowers face retaliation for their efforts to change or stop their employer’s conduct. When that happens, both South Carolina and federal laws may provide recourse.

Retaliation is prohibited by a variety of federal laws, as well as South Carolina law, including common-law prohibitions on wrongful termination.  Download The Whistleblower Guide

The basic elements of a retaliation claim are the same, regardless of the legal source of the claim: the employee must engage in protected activity and be subject to an adverse employment action, and there must be some nexus between the protected activity and the adverse action.

Protected activity. A protected activity is conduct that is encouraged by the underlying statute, generally to stop or report violations of the specific law. For instance, the False Claims Act includes an anti-retaliation provision (often called an “h” claim because the provision is codified at 31 U.S.C. § 3730(h)) that protects employees who make efforts to stop violations of the FCA. Specific federal or South Carolina statutes or case law define exactly what conduct is protected. In some cases, merely objecting to a supervisor may be sufficient to invoke the protection of the statute; in others, an actual report to a government agency or other formal action is required.

Adverse employment action. An adverse employment action is one that negatively affects an employee’s job, such as a termination, demotion, or pay cut. Harassment, unwarranted disciplinary actions, or other conduct that doesn’t directly affect pay but substantially affects the employee’s ability to do the job, such as isolation, forced relocation, or unremitting hostility may also be adverse employment actions in some cases. However, the standard is high to establish the kind of hostile work environment that amounts to an adverse employment action without formal HR action. The specific federal or South Carolina law at issue establishes exactly what adverse actions are actionable.

Nexus between protected activity and adverse action. Finally, the employee must be able to connect the adverse action to the protected activity. The most important element of this nexus is employer knowledge—the employer cannot have been retaliating if it did not know the protected activity had occurred. This can be the hardest element to establish, since most employers don’t tell the employee why they are being demoted or fired. Sophisticated employers can obscure the reasons with spurious disciplinary documentation or other methods. Temporality—the closeness in time of the retaliatory action to the protected activity (or the employer’s discovery of the activity)—may provide some support, but in most cases, a close timeline is not in itself sufficient to establish the nexus. On the other hand, closeness in time between, for instance, a termination or disciplinary action and protected conduct paired with a long history of excellent performance reviews can be very persuasive.

The federal and South Carolina laws that provide recourse for retaliation offer a variety of remedies, including:

• Reinstatement
• Back pay (and sometimes a multiple of back pay)
• Front pay
• Interest on back pay
• Other damages
• Costs and attorneys’ fees

All of these remedies are not available under every anti-retaliation law. Which remedies may be available depends on the specific law governing the protected activity.

Even as these laws offer protection for whistleblowers, they also create short timelines for making a claim for retaliation. In some cases, complaints must be filed within as little as 30 days from the retaliatory action.

Speaking up against fraud is difficult. The prospect of retaliation that can affect your livelihood and your career only adds to that difficulty. South Carolina and federal laws may provide redress for an employer’s retaliation against employees seeking to do the right thing, but whistleblowers must act quickly to protect their rights.

Want a summary of South Carolina anti-retaliation laws? Download Our Quick Guide

Are you experiencing retaliation for whistleblower activity? Consult an experienced South Carolina whistleblower lawyer today!

Many retaliation provisions have very tight timelines.

If you think you have a retaliation claim, don’t delay! Many retaliation laws provide very short deadlines from filing your claim—in some cases as little as 180 days after the retaliatory act. The retaliation component of a law may have a much shorter statute of limitations than the law governing the unlawful conduct.