Most of the time when we think of employer retaliation against employees for whistleblowing activity, we think of it in the context of an existing or past employee of the company against which he or she is making the accusation of misconduct. Less commonly thought of is a situation in which a former employee of the company against which he or she brought a whistleblower claim seeks employment at a new company that learns about the candidate’s whistleblower history and declines to hire that person.
Recent final regulations promulgated by the U.S. Department of Labor may make such decisions not to hire potentially more legally difficult for some employers.
The new rule – section 1980.101 of 29 CFR 1980 – contains a broadened definition of who is an “employee” for purposes of whistleblower protection. In particular, we should pay attention to the following definition:
(g) Employee means an individual presently or formerly working for a covered person, an individual applying to work for a covered person, or an individual whose employment could be affected by a covered person.
What this can potentially mean is if you are applying for work at a company covered by the Sarbanes-Oxley Act as modified by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and you have made a whistleblower claim against a past employer also covered under the same law, If your prospective employer refuses to hire you because of that whistleblower claim it might be construed as an act of retaliation against you even though you never started work for that company.
If you are convinced that you were denied employment in Wisconsin because of past whistleblower activity, you may want to consult with our law firm, which practices in whistleblower claims law from the employee’s perspective.