How To File A Whistleblower Complaint

When an employer violates the law, skirts the rules or fails to fulfill their legal obligations, employees who witness or experience this kind of conduct are faced with the choice of whether or not to report this type of unlawful behavior by acting as a whistleblower.

It’s natural for employees to feel uncomfortable or ill-at-ease about reporting any unlawful actions they may have witnessed, especially if they are concerned about facing workplace retaliation for doing so, but even for those who decide to press on, the very act of making such a report can feel just as daunting.

What is a Whistleblower?

A “whistleblower” is someone (typically an employee) who witnesses an illegal action in their workplace (usually committed by an employer), and then reports it to the proper authorities through official channels.

Some of the occurrences that are commonly reported by whistleblowers are:

• Broken laws
• Violated regulations or rules
• Financial lies or abuses
• Dangers posed to the employees’ or public’s health and safety

These reports are usually considered “protected disclosures,” which means that the whistleblower who provided them is covered by protections offered through various whistleblower protection laws.

However, should an employer ignore these protections and choose to retaliate against a whistleblower, regardless, it is called whistleblower retaliation.

These types of retaliatory acts are called “adverse actions” and can include:

• Termination
• Demotion
• Denied benefits
• Threats
• Harassment
• Reduced pay
• Blacklisting
• Intimidation

If a whistleblower has faced reprisals, such as those listed above, as a direct result of their initial report, they can then file a whistleblower retaliation complaint against the one(s) performing these unlawful actions.

What is a Whistleblower Complaint?

A “whistleblower complaint” is a formally submitted complaint that either reports the alleged misconduct and/or unlawful actions of an individual, such as an employer, or details and reports retaliation made against the whistleblower via adverse actions.

According to OSHA, complaints, in general, must include at least one of the following four elements in order to proceed to the next step:

• The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of law.)
• The employer knew about, or suspected, that the employee engaged in the protected activity.
• The employer took an adverse action against the employee.
• The employee’s protected activity motivated or contributed to the adverse action.

How Do I File a Whistleblower Complaint?

If you believe you may have a whistleblower case, your first priority should be reaching out to an experienced whistleblower attorney at McOmber McOmber & Luber. They will assess the details of the case, discuss the situation with you, and then help you decide what actions should be taken, if any.

Working with lawyers who are familiar with the ins-and-outs of the whistleblower laws in New York and New Jersey is absolutely essential, as they will guide and advise you throughout the entire process.

Will I Be Protected After Making a Whistleblower Complaint?

When a whistleblower makes a report about unlawful actions by their employer, it is considered “protected activity.”

In general, protected activity for whistleblowers typically consists of actions taken in opposition of a practice that is believed to be harmful or unlawful, such as telling an employer that their actions are discriminatory or dangerous. If any “adverse actions” are taken against you by an employer (such as termination or harassment) in response to your protected activities, you may have the right to legal action, and should consider making a retaliation complaint.

What Do I Need For My Whistleblower Complaint?

Like with personal injury cases, it’s important to keep a detailed, easily accessible case file of any relevant documentation regarding your whistleblower report (and any retaliation faced because of it, if need be.)

Some documents to have when making a complaint include, but are not limited to:

• Copies of relevant documents (emails, phone records, texts, etc.)
• Employee Handbook
• Lists of witnesses
• List of involved employees/officials
• Your last five paystubs
• Documentation of complaints

None of the above items are required when making a whistleblower complaint, but they may be helpful for the investigators who will be working with you on the case.

Note: do not include witness names or their contact information when submitting a complaint, as it may cause them to be targeted by retaliation. This information can and will be provided later on during the investigation.

Where Are Whistleblower Complaints Filed?

There are multiple avenues in which a whistleblower complaint can be filed initially, and your lawyers will help you determine what avenue is best for you and your case, including (but not limited to):

CEPA

The New Jersey Conscientious Employee Protection Act (CEPA) is considered NJ’s “whistleblower act,” and protects employees who report illegal and/or fraudulent actions committed by employers in the state of New Jersey.

Note that for any violation that does not involve a danger to the workforce or public (unpaid wages vs. toxic products, for example), CEPA requires that such concerns are first brought to the attention of a supervisor. If that supervisor fails to take adequate action, the employee may then notify a relevant agency, and proceed from there.

OSHA

The Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program “enforces protections for employees who suffer retaliation for engaging in protected activities under more than 20 federal laws.”

Reports can be made in any language, regardless of whether they are oral or written.

After a complaint is filed, OSHA will contact you to determine whether or not an investigation should be conducted. It is imperative that you respond to OSHA’s follow-up communication after you’ve made your report, as your complaint will be dismissed if you do not.

Additionally, a whistleblower complaint filed with OSHA cannot be filed anonymously. Should an investigation proceed, OSHA will notify the employer of the complaint, and provide the employer with an opportunity to respond.

DASHO or OSC

OSHA does not cover the complaints for federal employees or any alleged retaliation taken against them.

Instead, federal employees who wish to “blow the whistle” on an issue within their government agency should contact their Designated Agency Safety and Health Officer (DASHO) or, if applicable, the Office of Special Counsel (OSC), which exclusively handles whistleblower complaints from those working specifically within the executive branch of the government.

An NJ Whistleblower Attorney From McOmber McOmber & Luber Can Help You

If you have reason to believe your employer has violated the law, have been the victim of retaliation for speaking up, or simply need help with making a whistleblower claim, McOmber McOmber & Luber can help you understand your rights and options. Our knowledgeable and experienced whistleblower attorneys will ensure that your legal rights are protected. Call or contact us today to schedule a free consultation. We have conveniently located offices in Red Bank, Marlton, and Newark, NJ.