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How to Sue Your Employer for Retaliation . . . and Win!

Lady justice holding a scale

When you blow the whistle on fraud or other illegal conduct by your employer, the law protects you from retaliation.  This protection from retaliation applies whether you are reporting the submission of false claims to Medicare and Medicaid, violations of the securities laws, misrepresentations on customs declarations, or violations of certain other laws.

For example, if you are fired because you complained that your employer was engaged in Medicare and Medicaid fraud, the law gives you the right to sue for reinstatement to your job, two times the amount of your lost wages, and additional money damages for emotional distress and lost career opportunities.  Whistleblowers who report securities fraud, customs fraud, and violations of other laws are entitled to similar remedies.

The key to winning your case is gathering the evidence to prove each element of a retaliation claim.

What do I have to prove to win a retaliation case?

In order to win a retaliation case, you must prove three things.  First, you must prove that you engaged in “protected activity.”  Second, you must prove that your employer knew about your protected activity.  Third, you must prove that that your employer retaliated against you because of your protected activity.

“Protected activity” includes trying to stop your employer from engaging in the fraudulent or illegal conduct.  This may include complaining to managers, supervisors or human resources representatives inside your company, refusing to participate in the fraud or illegal conduct, reporting the fraud or illegal conduct to a government agency, and filing a whistleblower or qui tam lawsuit.  If you engaged in any of these activities, then you have engaged in protected activity.

For example, a physician or nurse who refuses to sign patient charts for treatments that they did not actually provide has engaged in protected activity.  An employee who files a claim with the SEC’s Office of the Whistleblower has engaged in protected activity.  An individual who reports to the government that a company is misrepresenting the value of goods on customs declarations has engaged in protected activity.

Not every report or complaint, however, qualifies as protected activity.  You must have a good faith belief that the conduct is illegal.  Protected activity does not include accusations of fraud without a good faith belief that that the conduct is actually illegal.

How do I prove my retaliation case?

Proving that you engaged in protected activity is usually done by producing emails, text messages, memos, or recordings of conversations.  For example, if you reported suspected fraud to a supervisor, manager or human resources representative, the best evidence of your protected activity is an email, text message or memo containing complaint.  Or you may have an audio recording if you reported your suspicions orally.  If you refused to go along with a fraud, the best evidence is an email, text message or other communication explaining why you refused.  And if you reported fraud to a government agency, the best evidence is a copy of the complaint you filed with the government. 

The same type of evidence also proves the second element of a retaliation claim:  that your employer knew that you were engaged in protected activity.  Once an employer knows that you are engaged in protected activity, they cannot take adverse employment actions against you because of that activity.

The third element of a retaliation claim is proving that your employer took adverse action against you because of your protected activity.  This type of evidence usually falls into three categories:  (a) timing; (b) your work history; and (c) your employer’s reaction to your complaints about fraud.

Timing is important.  If you worked for your employer for several years and you were fired two weeks after you complained of fraud or other illegal conduct, that is strong evidence that your employer retaliated against you because of your protected activity.  A couple of weeks or even a couple of months between your complaint and the adverse employment action is usually good evidence of retaliation.  The closer in time between your complaint and the adverse employment action, the stronger your case will be. 

That is another reason why copies of your complaints are important.  That evidence proves when you engaged in protected activity and when your employer knew about it.

Your job performance is important.  If you worked for the company for several years and received good performance evaluations, it will be very difficult for the employer to argue that you were fired for poor job performance.  You should pull together copies of anything that shows the quality of your work, such as copies of your work product, performance evaluations, awards, and emails or memos complimenting your work.

Other evidence of retaliation may include emails, text messages, or audio recordings of conversations in which a manager, supervisor, or owner criticizes you for complaining about or reporting fraud.

How much time do I have to file my retaliation claim?

Retaliation claims are subject to strict time limits.  Most of the relevant laws have a three-year statute of limitations.  That means you have three years from the retaliation to file your claim.  But some statutes of limitations are shorter.

These time limits are strictly enforced.  If you fail to file your claims on time, you could lose them forever.

Do not wait until the last minute to pursue a retaliation claim.  You do not want to risk losing your claim.  Also, you and your lawyer will need time to prepare your case before filing it.  

If you have been retaliated against because you reported or complained about fraud or other illegal conduct, you should consult with an attorney immediately to protect your rights.  Call us today at (212) 601-2728 to schedule a confidential consultation with an experienced whistleblower lawyer.

To schedule a free and confidential consultation with a whistleblower lawyer, call John Howley, Esq. at (212) 601-2728.
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