Retaliation and whistleblower claims have increased to about twice the rate seen in the 1990s. These cases are also becoming more complex. Courts have not been clear about what type of conduct is protected from retaliation, and judges have taken different views on the extent to which an employee claiming legal protection must have a good-faith belief in the accuracy of a complaint or a whistle blowing disclosure.

Retaliation claims usually get added to discrimination claims under Title VII of the 1964 Civil Rights Act. Sometimes, retaliation claims endure even when the discrimination claims are dismissed.

Questions about retaliation claims persist, especially at the state level. In general, a retaliation claim requires that an employee establish protected activity, a following adverse action by their employer, and a link between the two. Courts disagree as to whether the original complaint must be fair or in good faith.

A number of states have enacted whistleblower statutes, but these laws are not consistent, which can make it difficult to predict what may happen. Some state laws provide only back pay, while others allow for double or triple damages.

Documentation may be the best predictor as to whether the employee or the employer wins in a retaliation case. Documentation of real performance issues can be persuasive evidence that an employee was fired for cause, rather than in retaliation. However, any documentation must begin before the employee’s complaints or whistleblowing becomes known.