Wisconsin and Illinois employee retaliation and whistleblower protection

On behalf of Michael Fox

Federal and state laws provide protection to workers against employer retaliation after employees exercise rights under anti-discrimination laws or report illegal employer behavior.

Employees in Wisconsin and Illinois who oppose their employers’ potentially unlawful activity have state and federal protections against employer retaliation. Protected employee activities include complaining internally, filing claims with government agencies or courts, reporting concerns to law enforcement or government officials, and supporting colleagues who raise concerns about the unlawful activities in the workplace. It is imperative that employees facing these issues know their rights and understand how to protect their income and benefits from retaliation by an employer

What is retaliation?

Retaliation occurs when an employer takes an action to punish an employee for engaging in protected activity or to deter an employee from engaging in such activity. Retaliation may include termination, demotion, a significant change in job duties, lowered or negative performance reviews, withholding promotions, benefits or perks, pay cuts, creating an oppressive or unpleasant work environment, negative references, threatening to report an employee’s immigration status and more.

Examples of employee conduct that may not be penalized by an employer

The following are just a few examples of the type of conduct that is protected by federal law as well as the law of most states:

• An employee raises a concern that the employee or other employees have been subjected to race, sex or age discrimination by the employer with regard to some aspect of employment;
• An employee raises a concern about whether the employee or other employees are being paid as required by federal and state wage and hour laws that require payment for all of the time required by the employer to perform the employees job assignment (e.g., set up time, overtime, etc.);
• An employee requests or uses family or medical leave to which they are entitled under law;
• An employee raises concerns about safety in the workplace;
• An employee raises concerns about harassment in the workplace that is directed at the employee because of their race, sex or age;
• An employee raises concerns about the employer putting undue pressure on the employee to retire or expresses an intent to work to a certain age;
• An employee is perceived by the employer to be allied with someone who is discriminated against or who has complained of discrimination;
• An employee raises a concern about financial practices that appear to be unlawful (e.g., being required to open bank accounts for customers without their knowledge).

The above is a list of examples and does not cover all of the circumstances where an employee’s conduct is protected against retaliation.

Additional Federal protections

Retaliation and whistleblower protections exist under many federal laws. Examples of federal laws protecting employees from retaliation are Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act, the Family the Medical Leave Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Occupational Safety and Health Administration Act (OSHA).

Many of these laws require that employees file their retaliation and/or whistleblower claims within a short period of time, for example, within 30 days or 300 days of the act of retaliation. The complaint must also be filed with a specific federal agency, for example, the Equal Employment Opportunity Commission (EEOC) or the Department of Labor (DOL) depending on the nature of the whistleblowing activity that is involved. Therefore it is important that any employee who has been the victim of retaliation act promptly in asserting his or her legal rights.

The OSH Act (OSHA) created the Occupational Safety and Health Administration, the main federal agency that enforces workplace safety laws. Its authority includes many powerful anti-retaliation protections that cover many different kinds of complaints in many different areas of public and private employment. In fact, there are 22 whistleblower protections enforced by OSHA, which generally prohibit employers from retaliating against an employee who files a complaint or exercises any rights under the specific statutes. Each law contains a specific time limit for filing with OSHA. Those laws prohibit an employer from retaliating against a worker for reporting workplace and public health and safety violations to OSHA, which include specific protections for specific employment settings such as Railroad, Consumer Protection, Schools, Aviation/Airlines, Public Transportation, Maritime, Publically Traded Companies, Waste Disposal and others.

If the matter is not resolved through an OSHA investigation, a suit on behalf of the employee may be pursued federal court under most of the federal anti-retaliation statutes.

A similar complaint system for Title VII violations is administered by the federal Equal Employment Opportunity Commission (EEOC), or the equivalent state administrative agency (in Wisconsin, for example, the Equal Rights Division; in Illinois, the Illinois Department of Human Rights) for alleged employer retaliation against employees who assert their right to be free from illegal discrimination or harassment or similar rights. Depending on the kind of discrimination, it may be necessary to file a claim with the administrative agency first to obtain the right to file a lawsuit in federal court.

More About State protections

The Wisconsin Fair Employment Act (WFEA) and the Illinois Human Rights Act (IHRA) are state anti-discrimination laws, similar to Title VII, which also includes retaliation protections.

In Wisconsin, an employee may file a complaint for retaliatory employer behavior with the Equal Rights Division (ERD) of the Department of Workforce Development. The ERD will investigate the complaint and eventually determine whether there is probable cause that retaliation occurred and if so, a hearing on the merits of the complaint will be scheduled to be heard by an Administrative Law Judge.

Wisconsin Statutes afford additional whistleblower protection for some state government employees who disclose certain unlawful or potentially unlawful actions, including the misuse or abuse of public resources.

The state of Illinois has a Whistleblower Act that applies to both private and government employers and offers broad protections for workers who disclose or oppose unlawful or unethical actions.

The Illinois Human Rights Act prohibits illegal discrimination in employment, including retaliation for opposing it. The Illinois equivalent of the ERD is the Illinois Department of Human Rights, with which employees may file charges. Lawsuits may also be available.

The attorneys of Fox & Fox, S.C., with offices in Madison, Milwaukee and Chicago, represent employees in whistleblower and retaliation claims and a wide range of employment matters like discrimination, harassment, wrongful termination and more.