Generally, people want to do the right thing. There is little doubt about what you should do if you work at a baby formula factory and the employer dilutes baby food with rat poison. However, not many situations are as obvious as this one. Typically, the violations of law that an employee may see are not as clear-cut. May be you work in a medical office and suspect some billing irregularities, or maybe you work on a job site and your employer is not complying with safety regulations. While an employee may want to do the “right thing” she may be afraid that doing the right thing may result in discipline, adverse action, or even termination.
You should know that federal law provides a number of whistle-blower protections. It means that if you report the violation to the management and then, if the problem is not addressed, to the government (in other words blow a whistle), your employer cannot retaliate against you. The employer cannot fire you, cannot demote you, cannot transfer you to another site, etc. Similar protections apply to you if you refuse to participate in illegal activities. Whether protections under the federal law applies depends on your job, and the nature of the violation, among other factors.
It is important to remember that under the federal law that employees are not protected in every situation. An experienced counsel may be required to determine if you actions will be protected. Common situations include:
- Violations related to safety of trucks, ships, planes, railroads, workplaces, etc.;
- Violations related to water and air pollution;
- Violations related to toxic substances and solid waste;
- Violations related to securities;
- Violations related to ObamaCare;
- Violations related to food, drugs, and cosmetics.
Under the New York law, the protections are broader in a sense that they do not depend on your job and the nature of the violations.
N.Y. Labor Law § 740(2) provides:
Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
An factor under the N.Y. law is the nature of the violation. To be protected as a whistle blower, the violation must create and present a substantial and specific danger to the public health or safety. Note that not every employer’s violation affords you the protection; the danger must be substantial and it must be present. Alternatively, the violations must constitute health care fraud. The employee is also protected if he provides information or testifies about such a violation or if objects or refuses to participate.
In conclusion, an employee who comes across an egregious violation of law that threatens public safety may be relatively certain that he is protected against retaliation for reporting it. If the retaliation does occur, the employee may be able to recover damage in court for this retaliation.
