Whistleblowers protected from retaliation even if they’re wrong

Date Posted: 02/12/2024
whistleblower word & partial definition highlighted in pink on a white background

Whistleblower laws protect employees from retaliation if they file a complaint of unsafe or illegal working conditions. Even if the complaint was incorrect, the employee is still protected from retaliation. OSHA doesn’t expect employees to understand legal details, and employees sometimes file inaccurate complaints.

OSHA recommends that employees bring their concerns to their employer before filing a whistleblower claim, although this is not required. If the employee does inform the employer but the response is not satisfactory, the employee might file a complaint. In fact, an inappropriate reaction might encourage the employee to complain!

For example, if a manager dismisses the employee’s concern (or worse, disciplines or terminates the employee for raising the concern), the employee might contact OSHA. Whistleblower claims are not anonymous, but an employee who got fired has nothing to lose.

Elements of a claim

According to OSHA, a whistleblower complaint must include four key elements:

  1. The employee engaged in activity protected by a whistleblower protection law, such as reporting a violation of law;
  2. The employer knew or suspected that the employee engaged in protected activity;
  3. The employer took adverse action against the employee (such as demotion, discipline, or termination); and
  4. The protected activity motivated or contributed to the adverse action.

Of course, if an employer fired someone for valid reasons (such as performance issues), and didn’t know the employee filed a complaint, the employee should not have a whistleblower claim. However, the employer would likely need solid documentation to justify the termination. The employer may also need to show that it had no reason to suspect that the employee filed a complaint. These are not easy elements to establish.

Protected activity

An employee might allege something illegal, but the allegation turns out to be wrong. Even so, it qualifies as protected activity. Employees do not need to understand the ins and outs of federal regulations to report their concerns.

OSHA receives about 2,000 whistleblower claims per year alleging workplace safety violations. More than half of those cases are either dismissed or withdrawn. However, retaliating against the employee can still violate whistleblower laws.

For example, if an employee contacts OSHA and provides information that the employee reasonably believes to be true, and OSHA investigates but finds no violations, the employee is still protected. If the employer later takes adverse action against the employee for making the complaint, that’s retaliation. Whistleblower protections are not limited to employees whose reported concerns were later validated.

Unsubstantiated claims

When an employee files a complaint, OSHA will contact the individual and determine whether to investigate further. If the employee does not respond to this outreach, OSHA will dismiss the complaint.

If OSHA decides to proceed with an investigation, the agency will share the complaint details with the employer (including the name of the employee who filed it) and allow the employer an opportunity to respond.

This process helps weed out unsubstantiated claims. Considering the number of withdrawals and dismissals, many claims aren’t valid, but were presumably made in good faith. The whistleblower statute provides stiff penalties for knowingly making false statements, with fines up to $10,000 and up to six months in prison. But if the employee did not knowingly file a false claim, the employee would still be protected from retaliation.

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Topic Index

Most employers won’t face whistleblower claims, but should be ready if it happens. To quickly get up to speed on a new subject, check out the Topics area of the J. J. Keller® SAFETY MANAGEMENT SUITE. You’ll find a Whistleblower topic covering many laws that offer protections, as well as resources like training and written plan templates.

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