One of the main effects of whistleblower protection laws is to protect workers from retaliation after they have reported violations of the law in their workplaces. Lawmakers created these protections in order to help workers feel free to report wrongdoing at work without fearing that doing so will put their own jobs in jeopardy.
However, workers who take legal action against an employer sometimes have a hard time proving that the adverse action they faced at work was directly connected to their protected activity. In other words, a worker might report illegal activity and later be fired, but that doesn’t necessarily mean that their termination was unlawful retaliation; the employer might have had a legitimate reason for firing the worker.
Who has the burden of proof in this type of situation? Is it the worker who has to show that their termination was unjustified, or is it the employer who has to show that the termination was justified? Generally, the burden shifts: First the employer has the burden of showing that their whistleblowing was, at the least, a contributing factor to their termination, demotion or other adverse action. Next, the employer has the burden of proving that it had some legitimate reason for the action that was unrelated to the whistleblowing.
This issue plays a major role in a case recently heard by the U.S. Supreme Court.
The case involves a man who formerly worked for a securities brokerage firm. He claims that he was terminated in 2012 in retaliation after he reported what he thought was fraudulent activity by other people in the firm. He claims that his whistleblowing activity was protected by federal law. His former employer claims that he was laid off in a routine downsizing, not because of his reports, which it claims were not protected under the applicable federal laws.
At trial, a jury found for the worker, awarding him nearly $1 million in back pay and compensatory damages. A federal appeals court reversed that decision, finding that whistleblowers must prove that their employers intended to retaliate against them when it took adverse action against them.
The worker took his case to the Supreme Court, where the main issue involves the burden of proof. A U.S. Department of Justice attorney argued that a whistleblower does not have to prove that the employer acted with intent to harm them.
For workers who reported wrongdoing and then got fired or demoted, all this may seem very abstract, but the issue can make a big difference in the outcome of whistleblower protection cases.