You will rarely have direct evidence of whistleblower retaliation. Most employers are well enough aware of the law to understand that they cannot leave any proof of wrongdoing. They know that they will face significant legal liability for retaliation. Accordingly, you will need circumstantial evidence that proves your case. The good news is that courts will accept circumstantial evidence, especially because they know that direct proof is rare. Still, you need to take steps to build your case, beginning right after the time that you have come forward as a whistleblower.
What You Must Prove to Win Your Whistleblower Retaliation Case
In a whistleblower retaliation case, you have the initial obligation to present a prima facie case that you were the victim of illegal conduct. Initially, you must prove the following:
- You engaged in a protected activity under the relevant whistleblower law.
- You were subjected to an adverse employment action, such as termination or poor performance evaluations.
- There is a causal connection between your protected activity and the adverse action to which you were subjected.
Unlike a criminal case, you do not have to prove your whistleblower retaliation case using the same standard that a prosecutor is held to in a criminal case. You do not have to prove retaliation beyond a reasonable doubt. Instead, you need to demonstrate that it was more likely than not that you were retaliated against for your protected activity.
How You Can Build a Whistleblower Case Using Circumstantial Evidence
Here, circumstantial evidence is going to be the key to your case. Your employer is never going to tell you that any adverse employment action was the result of your whistleblowing activity. Instead, it is up to you to piece it together through indirect evidence.
Some forms of circumstantial evidence that can help you prove your case include:
- Close timing between the whistleblower complaint and termination or discipline
- Sudden negative performance reviews after years of positive evaluations
- Employer hostility immediately after protected reporting activity
- Supervisors making angry or defensive comments about the complaint
- Statements suggesting the employee was “not a team player” after reporting misconduct
- Increased scrutiny or micromanagement following whistleblowing activity
- Exclusion from meetings, projects, or communications after reporting concerns
Just one of these pieces of circumstantial evidence alone could be enough to help you win your case. It is even more valuable if multiple of these have occurred. Even still, you must have proof that these actually happened. You cannot be in a situation where it is just your word against that of the employer. Whether you have witness testimony that corroborates your own word, or written evidence of any nefarious objectives in your treatment, it can show that your employer acted wrongfully.
You Must Begin Building Your Whistleblower Retaliation Case Early
You should already be on the lookout for retaliation from the moment that you come forward as a whistleblower. You never quite know when your employer has guessed or learned of your identity. They could begin to act against you immediately. If you believe that you are being retaliated against, it is essential that you begin to gather the evidence relevant to your case immediately.
Contacting a wrongful termination lawyer around the same time that you have come forward to report illegal contact can help you gather the necessary proof in your case. Here, you will be on alert for potential signs of retaliation, and you will know what may be relevant evidence to your case. Once you have evidence, you should save it in a safe place and present it to your wrongful termination attorney so that they can use it in your case.
South Jersey Whistleblower Lawyers at The Law Offices of Leo B. Dubler, III, LLC, Will Protect Your Rights
If you have come forward as a whistleblower, the South Jersey whistleblower lawyers at The Law Offices of Leo B. Dubler, III, LLC, can protect your legal rights in court that your employer may have violated on the job. Schedule a free initial consultation with our office by messaging us online or by calling us today at 856-235-7075. With offices in Mount Laurel and Atlantic City, New Jersey, we proudly serve clients in the surrounding areas.