How do you prove a whistleblower case?
Usually, the best way to prove that there has been retaliation against a whistleblower is some type of documentary trail. Maybe there is some email that reflects that a complaint was made to a governmental agency or within the organization itself, and then after that complaint was made that some type of detrimental activity occurred in connection with the person’s employment.
The timing, obviously, is very important because if the person suffered a demotion prior to their blowing the whistle, that is going to be very difficult to connect the prior demotion to the whistleblowing activity. It has to be a cause and effect.
What kind of information should the employee gather to make their case stronger for you?
Emails, text messages, any type of documentary evidence that would demonstrate the employee made a complaint or blew the whistle. Obviously, if they have the names of any of the parties, if it was all done orally, if there was anybody else in the room when the particular employee made the complaints to get their name, information, et cetera, so the attorney can contact that person and find out what they have to say.
Would it be helpful if your client kept a daily written log?
Yes, if they have kept a diary or a log, that’s ideal because it helps us recreate what happened much more easily rather than going by someone’s memory.
Normally, the best form of evidence is going to be some sort of email. For example, let’s say an employee sent an email to his supervisor saying, “I believe the way that we are reporting these sales is fraudulent for the following reasons,” and the employee gives a number of reasons as to why they think fraud is occurring. Then, two weeks later, that employee gets demoted, reportedly for bad behavior or because of bad performance on the job.
You could make a good connection between the written complaint the employee made and just a week or two later they suffer some type of demotion, or worse yet, termination. That type of evidence is going to be the best.
But, it’s not always that employees blow the whistle in writing. Many times they do it orally, and then detrimental workplace actions happen after. It can be more difficult to prove because it’s hard to prove that the oral report happened. It can become a he-said at that point in time.
What form can retaliation take?
It depends on the circumstances. The most obvious form would be termination. It could mean a demotion. It could mean a shift to a more detrimental schedule. Harassing the employee could potentially be retaliation as well.
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