1. Hire an Experienced Whistleblower Attorney
The most important step a whistleblower can take to help their chances of winning a retaliation case is hiring an experienced whistleblower attorney. Whistleblower retaliation cases are complex and there are important differences between different whistleblower protection laws. Hiring an attorney who is experienced in whistleblower retaliation cases and is familiar with the process is an invaluable asset for any whistleblower.
2. Know the Specifics of the Law
The Department of Labor oversees more than twenty different whistleblower laws. The rights afforded to whistleblowers under these laws are not uniform, therefore it is essential that a whistleblower familiarize themselves with the specifics of the law they are seeking protection under.
Under certain DOL laws a whistleblower may remove their case to federal court for de novo review while under other laws this is not permitted. Different laws also have varying statute of limitations, burdens of proof, and rights of discovery. An experienced whistleblower attorney can help a whistleblower understand their rights under the specific law they are filing their case under.
3. File Promptly
Each whistleblower protection law has a strict statute of limitations. A whistleblower must file their retaliation complaint within this timeframe. The deadline is based upon the day the retaliatory act takes place. For example, if a whistleblower is fired for blowing the whistle they would have a specific number of days from the day they were notified of their termination to file their retaliation complaint.
The statute of limitations for DOL whistleblower protection laws are either 30 days, 60 days, 90 days, or 180 days. The specific statute of limitations for each law can be found here.
4. Gather Evidence
It is essential that a whistleblower gathers the proper evidence to prove they were retaliated against for blowing the whistle. A whistleblower should begin compiling hard evidence as soon as possible. Contemporaneous documentation is key. However, a whistleblower must be careful not to improperly steal confidential information.
During the discovery stage of a case a whistleblower can submit information requests which the company must respond to. Useful documentation that can be gathered in discovery includes performance records, personal records of other comparable employees, internal investigative reports and audits, e-mails and records related to the whistleblower allegations.
5. Know When to Remove a Case to Federal Court
Under certain statutes enforced by DOL a whistleblower may remove their case to a federal court if DOL delays the issuance of an order within a certain amount of time (generally within the time period of 180 or 210 days). When a case is removed to federal court it is litigated de novo, meaning that the entire case is adjudicated anew, as if nothing was ever filed within the DOL.
Whether or not to remove a case to federal court is a critical decision that must be carefully weighed. It is a mistake to think that a whistleblower will automatically do better before a U.S. District Court judge. There are numerous down-sides to filing in federal court. Additionally, only the employee has a right to remove a case to federal court. This gives the employee a significant advantage. He or she can wait and see what DOL Administrative Law Judge (ALJ) is assigned to the case.
All of the ALJ decisions are published on the ALJ website, and employees can determine who his or her judge interprets the law and procedures, and whether or not this judge can be expected to fairly decide the case. Additionally, the employee can review the reputation of the federal judges in the judicial district where his or her case would be filed. Such an analysis should be conducted before any decision to remove a case is finalized.
Furthermore, the DOL laws offer some significant benefits to whistleblowers. These include the very simple complaint filing process with no filing fee, the fact that the company cannot file a counterclaim seeking damages or an injunction against the employee, and the prohibition of the enforcement of a mandatory arbitration agreement.