1. Whining & Dining:
Avoiding Whistleblower and
Retaliation Claims

2. Retaliation Statistics
Retaliation charges filed with EEOC have risen
dramatically in last 10 years
• 2000 - 21,613 retaliation charges
• 2011 – 37,334 retaliation charges
• This represents 37% of all charges received
by the EEOC in 2011
• In September and October 2011, the EEOC
filed 21 retaliation lawsuits

3. Federal Laws With Retaliation
Provisions:
• Title VII of the Civil Rights Act of 1964
• The Age Discrimination in Employment Act (ADEA)
• The Americans with Disabilities Act (ADA)
• The Family and Medical Leave Act (FMLA)
• The Fair Labor Standards Act (FLSA)
• The National Labor Relations Act (NLRA)
• The Occupational Safety and Health Act (OSHA)
• Sarbanes-Oxley Act of 2002

4. Florida Laws with Retaliation
Provisions:
• The Florida Workers’ Compensation Act (§
440.205)
• The Florida Civil Rights Act of 1992 (FCRA)
• The Florida Public Sector Whistleblower’s Act
(§ 112.3187)
• The Florida Private Whistleblower’s Act (§§
448.101- 448.104)

5. Whistleblower vs. Retaliation
• Whistleblower – employer violation
of law, rule or regulation
• Retaliation – related to employee’s
individual rights

6. Who Is Protected From
Retaliation?
• Current employees
• Former employees
• Job applicants
• Associates of those employees who
engage in protected activity

7. Elements of a Retaliation Claim
Three Elements:
1. Protected Activity
2. Adverse Action
3. Causal Connection

8. Protected Activity-
Opposition vs. Participation
• Opposition – making a formal
complaint; refusing to obey an
employer’s order.
• Participation - participation in
external investigations or a lawsuit.

9. Florida Whistleblower Act
Three subsections:
1. Disclosure
2. Participation
3. Opposition – most common

10. Sarbanes-Oxley Act of 2002
Protected Activity
• Purpose: restore investor confidence in the
financial markets by improving corporate
responsibility.
• How this is accomplished: provide
whistleblower protection to employees of
publicly traded companies (and contractors)
who report corporate fraud.

11. Dodd-Frank Act of 2010
• Implemented revisions to the SEC and SOX
whistleblower provisions.
• Monetary awards to eligible individuals who provide
original information that leads to successful SEC
enforcement actions resulting in monetary sanctions
exceeding $1 million.
• Effective August 12, 2011 – 334 whistleblower tips
in first 7 weeks.
• Largest number of tips – Texas, New York, Florida.

12. Must There be an Actual Violation
of A Law, Rule or Regulation?
• Title VII and FCRA retaliation – employee must
have a good faith belief that there was a
violation of a law when they engaged in
protected activity.
• FWA – employee must show an actual violation
of law, rule or regulation.

13. What is an “Actual” Violation
of a Law, Rule or Regulation?

14. TEST
Is This an “Actual” Violation of a
Law, Rule or Regulation?

15. Supervisor is stealing from cash register
and giving away food
1. Yes
2. No
3. Isn’t that his job?

16. Company violated own internal policy
1. Yes
2. No
3. So what, who cares?

17. FWA Practice Scenario:
Protected Activity
• University security guard lawsuit.
• Tattles on co-worker involved in sex scandal.
• Reports to university and police.
• Security guard is fired and sues under Florida
Whistleblower’s Act.

18. Adverse Employment Action
• Burlington Northern and Santa Fe Rwy
Co. v. White - retaliatory conduct
need not be employment related.
• Employee must show that the action
would have dissuaded a reasonable
worker from making or supporting a
charge of discrimination.

19. Adverse Employment Action
• Obvious:
– Termination, demotion, failure to
promote, raises.
• Not as Obvious:
– A poor performance review that effects
merit increase eligibility, transfers.

20. TEST
Is This Employment Action
Adverse?

21. Supervisor’s refusal to invite an
employee to lunch.
1. Yes
2. No

22. Exclusion of an employee from a
weekly training lunch.
1. Yes
2. No

23. Snub or cold shoulder by co-
workers.
1. Yes
2. No

24. Yelling at the employee.
1.
2.

25. Heightened scrutiny.
1. Yes
2. No

26. A written reprimand that was
later rescinded.
1. Yes
2. No

27. A lower performance evaluation.
1. Yes
2. No

28. Avoiding Whistleblower
and Retaliation Claims
1. Respond to employee complaints
a. Do not take complaint personally
b. Maintain confidentiality
c. Implement strong anti-retaliation
policy
d. Train managers and supervisors

29. Avoiding Whistleblower
and Retaliation Claims
e. Remove authority of alleged
discriminator to make employment
decisions about accuser (and
separate)
f. Investigate thoroughly
g. Notify complainant about
outcome of investigation

30. Avoiding Whistleblower
and Retaliation Claims
2. Assess the risks before taking adverse action
a. Consider the complaint
b. Consider timing
c. Consider the response to the complaint

31. Avoiding Whistleblower
and Retaliation Claims
d. Consider the consequences of the
complaint
e. Consider the employee

32. Avoiding Whistleblower and
Retaliation Claims
3. Dealing with Performance Issues
a. Objectively document
performance
b. Be fair
c. Never fire on the spot

33. QUESTIONS?