PART A: VALIDITY OF CASE

DOES EMPLOYEE HAVE A VALID CASE? [Yes] [No]

Explanation: A whistleblower’s complaint must make four allegations in order to be valid under law. The purpose of this section of the checklist is to determine if the employee has properly made all four of these allegations.

1. Does the Employee Claim He/She Engaged in Protected Activity?

Does the employee claim that he/she engaged in any of the following activities:

1. Reporting wrongdoing by the company to public officials [Yes] [No]
2. Reporting wrongdoing by the company internally to a person or body within the organization [Yes] [No]
3. Participating in an investigation or proceeding involving alleged wrongdoing by the company [Yes] [No]
4. Requesting or taking leave or other to which the employee is lawfully entitled [Yes] [No]
5. Asserting any other workplace right such as carrying out activities as a member of a union or participating in the company’s joint health and safety committee [Yes] [No]

Instructions: If you list no in boxes a – e above, the employee didn’t engage in protected activity and doesn’t have a valid claim for illegal retaliation.

2. Does the Employee Claim the Company Knew of the Protected Activity?

If you checked “yes” in a – e above, indicate if the employee alleged that a company officer, employee, contractor, subcontractor or agent knew of his or her engaging in protected activity: [Yes] [No]

Instructions: If the employee doesn’t allege that the company knew of the protected activity, the company can’t be liable for retaliation.

3. Does Employee Claim the Company Took Adverse Action?

Check each of the following activities the employee claims the company took or threatened to take:

[ ]    Discharge
[ ]    Demotion
[ ]    Suspension
[ ]    Other Forms of Discipline
[ ]     Reassignment
[ ]    Harassment
[ ]    Discrimination in Any Form in Regard to Compensation, Terms, Conditions or Privileges of Employment

Instructions: Anti-retaliation laws don’t apply unless the company takes one of the above adverse actions against the employee. So if you haven’t checked off at least one of the listed items, the employee doesn’t have a valid case.

4. Does the Employee Claim the Adverse Action Was Retaliatory?

Is the employee claiming the adverse action was in retaliation for engaging in protected activity? [Yes] [No]

Instructions: If you checked no, the employee doesn’t have a valid claim for retaliation. If you checked yes, proceed to Part B below.

B. COMPANY’S DEFENSE

DOES THE COMPANY HAVE A VALID DEFENSE? [Yes] [No]

1. Does company have evidence that it would have taken the action described in Part A, Question 3 above, even if the employee never had engaged in the alleged protected activity? [Yes] [No]
2. If the answer to (a) is YES, file with your response all of the following documents that apply (you have 20 days to gather this information):
   [ ]    Written statement explaining why company would have taken same action anyway
   [ ]    All affidavits supporting the company’s claim
   [ ]    All other documents supporting the company’s claim, such as written policies, warnings, performance evaluations, and other documents from the employee’s personnel file
3. If the answer to (a) is YES, consider including in your response a request for a meeting with the employee, the union or regulatory officials to present the company’s position.

Story Tools:  Email This Post  Print This Post Top