Oregon Whistleblower Retaliation Attorney

The Important Role of Whistleblowers

Corporations and businesses must follow the rules just like anyone else. But when corporate misconduct occurs, it rarely happens in public view. Many corporations keep their business practices “close to the vest” – sometimes for legitimate reasons – making it difficult for authorities to detect illegal activities or corporate misconduct within an organization.

That’s why whistleblowers play an important role in enforcing our laws. A whistleblower is a person within an organization – typically an employee – who discloses evidence of illegal, unethical, or fraudulent activities that could cause harm to others.

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Whistleblower attorney in Portland, OR
Whistleblower retaliation in Portland, OR

The Risks and Benefits of Whistleblowing

The law recognizes that employees within an organization are the best people to expose corporate wrongdoing. But those people often face a dilemma. Sometimes whistleblowers are afraid of being labelled as disloyal. Sometimes they are concerned about the repercussions to their career if they “bite the hand that feeds them.” 

These are legitimate concerns. But people who witness wrongdoing must also consider the adverse consequences of doing nothing. Not only does staying silent in the face of wrongdoing compromise our own integrity, it could lead to other people getting seriously hurt or defrauded. Employees in some jobs have no choice – they are “mandated reporters” and must report wrongdoing or they could find themselves facing criminal and civil liability.

Whistleblowing not only protects the public, it can also protect the company that the whistleblower works for. Employees who blow the whistle can serve as an “early warning system” that may alert a business to a serious problem that could land the business in hot water if action is not taken immediately to address the problem. Whistleblowers can potentially save their companies millions of dollars in criminal and civil penalties by bringing their concerns forward at the earliest opportunity.

That is not to say retaliation for blowing the whistle is not a real risk. However, the law recognizes this risk and provides many protections for whistleblowing activities. The purpose of these protections is to encourage employees “in the know” to come forward so that any wrongdoing can be addressed before it causes further harm.

Oregon employees have some of the most expansive whistleblower protections in the nation. There are also many protections provided by federal laws. This article will provide an overview of some of the laws protecting Oregon employees from workplace retaliation.

If you have any questions about whether a particular law might apply to your situation, please give me a call or send me a message. I would be happy to provide a free consultation to discuss your situation. If you are contemplating blowing the whistle, or have experienced retaliation for doing so, I want you to understand your legal rights so you can make the best decisions for you and your career.

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Oregon Whistleblower Protections

Oregon has numerous statutory protections for whistleblowers. However, they do not all provide the same protections. Below is a short description of the most common whistleblower statutes that I encounter in my practice. As you will see, there are two basic components of every whistleblower protection statute. First, you must demonstrate that you engaged in “protected activity” (i.e., did something that the law protects you for doing), and, second, you must show your employer took adverse action against you because of your protected activity. 

However, some of these statutes have other requirements and protections, and the law is constantly changing, so please do not use the information below as a substitute for legal advice from a licensed whistleblower attorney. The summaries below are provided for informational purposes only to help you identify possible protections that may exist. You are encouraged to consult with an attorney for help with your particular situation.

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Courts protect Oregon employees who blow the whistle on corporate wrongdoing

Whistleblower protections for nurses and nursing staff –

ORS 441.181

Covered entities/persons: “Hospitals” and “nursing staff.”

  • “Hospital” = An acute inpatient care facility as defined by ORS 442.470, or a hospital that meets the definition in ORS 442.015.
  • “Nursing staff” = a registered nurse, a licensed nurse practitioner, a nursing assistant, or any other assistive nursing personnel.

Protected Activities: Nursing staff are protected under this statute if they do any of the following: 

  1. Discloses to a manager, private accreditation organization, or public body of information that the nursing staff member reasonably believes (1) is a violation of law, rule, or professional standards and (2) poses a risk to the health, safety, or welfare of the public. 
  2. Provides information to or testifies before a private accreditation organization about an alleged violation of law, rule, or professional standards that the employee reasonably believes poses a risk to the health, safety, or welfare of the public.
  3. Objects or refuses to participate in any activity that the employee reasonably believes is a violation of law, rule or professional standards that poses a risk to the health, safety, or welfare of a patient or the public.
  4. Participates in a committee or peer review process or file a report/complaint that discusses allegations of unsafe, dangerous, or potentially dangerous care.

Importantly, before a whistleblower makes a complaint to a private accreditation organization or public body, the whistleblower must first give written notice to a manager and allow the manager a reasonable opportunity to correct the problem. If a whistleblower does not do this before going to an outside organization or body, the whistleblower will not be protected from retaliation, unless:

  • The employee is reasonably certain that the violation is already known to one or more managers and an emergency situation exists;
  • The employee reasonably fears physical harm as a result of the disclosure;
  • The disclosure to a private accreditation organization or public body involves includes evidence of a violation that the employee reasonably believes is a crime

Prohibited Retaliation: Prohibits a hospital from taking any retaliatory action against nursing staff for protected activity. Prohibited “retaliatory action” includes the following:

  • Discharge
  • Suspension
  • Demotion
  • Harassment
  • Denial of employment or promotion
  • Layoffs
  • Other adverse action involving the terms or conditions of employment

Remedies: If a hospital retaliates against a nursing staff whistleblower, the following remedies are available to the nursing staff:

  • Reinstatement to the same or equivalent position that the nursing staff held before the retaliatory action
  • Reinstatement of all benefits and seniority rights the nursing staff would have enjoyed if the retaliation had not occurred
  • Financial compensation for any lost wages and benefits
  • Interest on any lost wages or benefits
  • Reimbursement of attorneys’ fees
  • Reimbursement of litigation expenses
  • Punitive damages

Time to Act: Nursing staff whistleblowers have one year to seek their remedies by filing a complaint with the Oregon Bureau of Labor and Industries, or a civil lawsuit in court. ORS 441.184, 659A.820. 

NOTE: You may have to take action more quickly if the hospital is owned or operated by the state or public entity.

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Whistleblower protections for reporting discriminatory wages or compensation – ORS 652.220(3)

Covered entities/persons: Applies to any “employer” and “employee” as defined by ORS 652.210.

  • “Employer” = Any person with one or more employees. This includes public entities such as state agencies, counties, cities, etc. However, the federal government is not considered an employer for purposes of this statute.
  • “Employee” = Any individual who renders personal services to an employer and who is paid at a fixed rate based on the time spent performing work or the amount of work performed.

Protected Activities: An employee is protected from retaliation if he or she does any of the following:

  1. Files a complaint with the Oregon Bureau of Labor and Industries alleging discrimination in the payment of wages or compensation based on a protected class.
  2. Files a civil lawsuit for discriminatory compensation practices.
  3. Testifies, is about to testify, or has been perceived as testifying in a legal proceeding relating to an employer’s discriminatory compensation practices.

Prohibited Retaliation: An employer is prohibited from compensating the employee differently because the employee engaged in protected activity under this statute.

Remedies: An employee who is subjected to whistleblower retaliation under this statute is entitled to seek the following remedies pursuant to ORS 652.220(7) and 659A.885:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: An employee who suffers retaliation for engaging in protected activity under this statute has the choice to either file a complaint with the Oregon Bureau of Labor and Industries, or a lawsuit in court. (ORS 652.220(7)). In either case, the employee has one year to file legal action. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – civil action). 

NOTE: You may have to take action more quickly if your employer is a public entity (ORS 659A.875(8) – 300 days). 

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Whistleblower protections for employees who make wage claims – 

ORS 652.355

Covered entities/persons:  Applies to any “employer” and “employee” as defined by ORS 652.310.

  • “Employer” = Any person or business who employs one or more employees in the State of Oregon, including state agencies and public bodies. Does not include the federal government.
  • “Employee” = Any individual who renders personal services to an employer and who is either paid at a fixed rate based on time spent performing work or the amount of work performed. The work generally must be at least partially performed and paid for in Oregon. Does not include independent contractors or partners in the employer’s business.

Protected Activities: An employee is protected under this statute if they do any of the following:

  1. Makes a claim for unpaid wages (see definition of “wage claim” in ORS 652.320(7))
  2. Discusses or asks about unpaid wages
  3. Consults with an attorney about making a wage claim
  4. Testifies in a proceeding to recover unpaid wages
  5. Asks about overtime wages and maximum working hours 
  6. Reports a violation of the overtime and maximum working hours law (see ORS 652.020)
  7. Refuses to work more than the maximum working hours prescribed by law

Prohibited Retaliation: An employer covered by this statute is not allowed to terminate or discriminate in any other manner against an employee because the employee engaged in protected activity.

Remedies: An employee who suffers retaliation related to making a wage claim or inquiry may pursue the following remedies provided by ORS 659A.885(1)-(3):

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: An employee who suffers retaliation for engaging in protected activity under this statute has the choice to either file a complaint with the Oregon Bureau of Labor and Industries, or a lawsuit in court. (ORS 652.355(2)). In either case, the employee has one year to file legal action. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – civil action).

NOTE: You may have to take action more quickly if your employer is a public entity (ORS 659A.875(8) – 300 days). 

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Whistleblower protections for employees who report wage and hour violations – ORS 653.060

Covered entities/persons: Applies to all “employers” and “employees” as defined by ORS 653.010.

  • “Employer” = Any person who employs another person (even just one), including state and public entities. 
  • “Employee” = Any person who performs work for an employer unless exempted by ORS 653.020. 

Protected Activities: The following activities are protected under this statute:

  1. Filing a complaint or reporting violations of:
    1. Minimum wage laws (see ORS 653.025 and OAR 839-020-0010)
    2. Overtime laws (see OAR 839-020-0030)
    3. Improper deductions from paychecks
    4. Mandated meal and rest periods
    5. Recordkeeping requirements relating to pay records
  2. Inquiring about certain wage and hour laws, including those relating to minimum wages and overtime.
  3. Filing a legal proceeding for certain wage and hour violations, including those relating to minimum wages and overtime.
  4. Testifying or preparing to testify in legal proceedings involving certain wage and hour violations, including those relating to minimum wages and overtime.

Remedies: Any employee who suffers retaliation for engaging in any of the foregoing protected activities is entitled to seek the following remedies under ORS 659A.885(1)-(2):

  • Back pay (extending back two years from the date the legal action was filed)
  • Attorney’s fees 
  • Court costs

NOTE: There is no right to a trial by jury under this statute. Any remedies are awarded by a commissioner or judge.

Time to Act: An employee who has suffered whistleblower retaliation under this statute has the option to file a complaint with the Oregon Bureau of Labor and Industries, or a lawsuit in court. In either case, the employee must file legal action within one year. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – civil action).

NOTE: You may have to take action more quickly if your employer or former employer is a public body. 

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Whistleblower protections for reporting workplace health & safety violations – ORS 654.062(5)(a)

Covered entities/persons:  This law applies to “employers” and “employees” as defined under ORS 654.005, and also includes prospective employees.

  • “Employer” = Any person or organization with one or more employees, including state agencies and other public entities.
  • “Employee” = Any person who is paid to perform work for an employer and is subject to the employer’s direction and control. This includes elected and appointed officials of public entities.

Protected Activities: The following activities are protected under this statute:

  1. Opposing unsafe work practices, hazardous working conditions, or unhealthy work environments.
  2. Making a complaint or filing a legal proceeding for unsafe work practices, hazardous working conditions, or unhealthy work environments.
  3. Testifying in legal proceedings related to the employer’s workplace safety violations.
  4. Exercising any right afforded by law to work in a safe and healthy work environment.
  5. Making a good faith report of an assault in certain health care facilities.

Prohibited Retaliation: An employer is prohibited from terminating or otherwise treating an employee differently because the employee engaged in protected activity. 

Remedies: The question of what remedies are available for whistleblower retaliation under this section is not entirely settled due to ambiguity in the statutory text and caselaw interpreting the statute. The remedies also differ depending on which legal avenue you choose to pursue your claim. Whistleblowers under this statute have the option of filing a complaint with the Oregon Bureau of Labor and Industries, or to file a lawsuit in court. Employees who choose to go the BOLI route generally will be entitled to seek all remedies available under ORS 659A.885(1)-(3), which includes back pay, compensatory damages, punitive damages, attorney’s fees, and court costs.

If the whistleblower opts to file a lawsuit, the court is permitted to order “all appropriate relief,” a somewhat nebulous phrase that Oregon courts have not clearly defined. Some courts have suggested that the remedies recoverable in a lawsuit for whistleblower retaliation under this statute are more limited than the remedies available through the BOLI process. See, e.g., Mantia v. Hanson, 190 Or. App. 36, 42-43 (2003); Chouinard v. Grape Expectations, Inc., Case No. 08-806-JO (D. Or. Jan. 12, 2019).

The broader range of remedies available to whistleblowers in the BOLI process should therefore be considered in deciding which legal process to utilize in pursuit of relief. However, as discussed below, the BOLI process has a very short time period for filing claims, and if the employee misses the filing window, he or she may have no choice but to file in court.

To obtain the broadest range of damages possible in a lawsuit, whistleblowers and their lawyers should also consider whether the employer’s retaliatory actions might also violate other whistleblower statutes, such as ORS 659A.199 or 650A.203 (discussed below), and if so, bringing companion claims under those statutes can significantly expand the whistleblower’s remedies. 

Time to Act: As noted above, an employee may pursue whistleblower claims by filing a complaint with the Oregon Bureau of Labor and Industries. The complaint must be filed within 90 days after the employee has reasonable cause to believe that whistleblower retaliation has occurred. ORS 654.062(6)(b). 

If the employee elects to file a lawsuit, he or she must do so within one year after he or she has reasonable cause to believe retaliation has occurred. ORS 654.062(6)(d).

NOTE: You may have to take action more quickly if your employer or former employer is a public body. 

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Whistleblower protections for students – ORS 659.852(2)

Covered entities/persons: Applies to students in any “education programs.”

  • “Education program” = School districts, public charter schools, education service district, long term care of treatment facilities for students, youth corrections programs, public and private colleges, public and private universities, career schools, and private schools.

Protected Activity: Students covered by this statute are protected from retaliation if they report in good faith information that the student believes is evidence of a violation of law. 

Prohibited Retaliation: An educational program may not take any of the following actions against a student because the student has engaged in protected activity:

  • Suspensions
  • Explusions
  • Disenrollments
  • Grade reductions
  • Denial of academic opportunities
  • Denial of employment opportunities
  • Exclusion from academic activities
  • Exclusion from extracurricular activities
  • Denial of access to transcripts
  • Threats
  • Harassment
  • Any other adverse action that substantially disadvantages the student in academic, employment, or extracurricular activities

Remedies: A student whistleblower who is affected by retaliation may a lawsuit to seek the following remedies provided by ORS 659A.882(1)-(3):

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: The statute itself does not prescribe a deadline for filing a student whistleblower retaliation lawsuit. However, the statute directs that the lawsuit may be brought “under ORS 659A.885” – a statute that provides remedies for employment law violations. The statute of limitations for unlawful employment practices is generally one year, with some longer periods for certain discriminatory practices. ORS 659A.875(1)(a). 

However, a student whistleblower retaliation lawsuit does not arise out of an employment relationship, so an argument could be made that the limitations periods for actions alleging “an unlawful employment practice” under ORS 659A.885 does not apply. In that event, Oregon’s longer six-year limitations period for statutory liabilities would apply. ORS 12.080.

NOTE: If the education program that retaliated against the student whistleblower is a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for reporting discriminatory employment practices – ORS 659A.030(1)(f)

Covered entities/persons: Applies to any “person.”

  • “Person” = Any individual, partnership, corporation, company, organization, or public body.

Protected Activities: Anyone is protected by this statute if they oppose any unlawful employment practice or other practice prohibited by Chapter 659A or the rules adopted by the Commissioner of the Oregon Bureau of Labor and Industries. 

A person is also protected under this statute if they file a complaint, testified, or assisted in any legal proceedings brought under Chapter 659A (including BOLI proceedings). 

This statute is most commonly invoked by employees who oppose or complain about illegal discrimination and harassment in the workplace, although those are not the only scenarios in which this statute can apply.

Prohibited Retaliation: This statute prohibits any person from retaliating against any other person (typically an employee) who engages in protected activity. Prohibited retaliation includes terminating or otherwise treating someone differently because that person’s protected activities.

Remedies: A whistleblower who suffers retaliation for reporting unlawful employment practices is entitled to pursue the full range of remedies available under ORS 659A.885, including:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: Whistleblowers may pursue their remedies through either the BOLI complaint process or by filing a lawsuit in court. In either event, a whistleblower must file legal action within five years of the retaliation. (ORS 659A.820(3) – BOLI complaint; ORS 659A.875(1)(b) – lawsuit). 

NOTE: If the person who retaliated against you is a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for injured workers – ORS 659A.040

Covered entities/persons: This statute applies to “employers” and their workers.

  • “Employer” = Any person or entity that used the personal services of one or more employees in the State of Oregon. While the employer must employ at least one employee in Oregon, the employer must have at least six employees total (even if some work in other states) for this statute to apply. ORS 659A.001(4), 659A.040(2).

Protected Activities: An employee engages in protected activity under this state when they:

  1. Applied for worker’s compensation benefits
  2. Invoked or utilized the procedures for obtaining worker’s compensation benefits (including reporting a work injury)
  3. Testified in any worker’s compensation legal proceedings

Prohibited Retaliation: An employer may not discriminate against an employee who engages in protected activity under this statute. This means the employer may not treat the employee any differently because the employee reported a work injury, filed a claim for worker’s compensation benefits, or testified in a worker’s compensation proceeding. 

Remedies: Whistleblowers who are retaliated against for reporting work injuries or seeking worker’s compensation benefits are entitled to the following remedies under ORS 659A.885:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: Whistleblowers may pursue their remedies under this statute by filing a BOLI complaint or a lawsuit in court. In either event, the whistleblower must do so within one year of the retaliatory conduct. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – lawsuit). 

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for employees who report illegal activities – ORS 659A.199

Covered entities/persons: Applies to “employers” and “employees” as defined by ORS 659A.010.

  • “Employer” = Any person or entity that has one or more employees in the State of Oregon.
  • “Employee” = Any person who provides personal service to an employer under the employer’s direction and control, except for certain family members providing domestic services. Although employees who work for public and non-profit employers have separate whistleblowing protections (see ORS 659A.203 below), they are also covered by this statute. Burley v. Clackamas County, 298 Or. App. 462, 465-66 (2019). 

Protected Activities: An employee engages in protected activity within the meaning of this statute when the employee makes a good faith report of information that the employee believes is evidence of a violation of any state or federal law, rule, or regulation.

Prohibited Retaliation: Employers are prohibited from taking any retaliatory or discriminatory action against due to an employee’s whistleblowing activities, including:

  • Discharging the employee
  • Demoting the employee
  • Suspending the employee
  • Treating the employee differently with regard to promotion, compensation, or other terms, conditions, or privileges of employment. 

Remedies: Employee whistleblowers who have been retaliated against under this statute are entitled to all remedies available under ORS 659A.885, including:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Additionally, this whistleblower statute preserves any and all other remedies that may be available to employee whistleblowers, whether those remedies are found in the common law or other statutory provisions.

Time to Act: Employee whistleblowers may pursue their remedies by filing a complaint with the Oregon Bureau of Labor and Industries or a lawsuit in civil court within one year of the retaliation.

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for public and non-profit employees – ORS 659A.203

Covered entities/persons: Applies to public and nonprofit employers and their employees.

  • “Public employer” = This generally means the state or any state agency or entity. It also includes any person who is authorized to act on behalf of the state with respect to the supervision, management, or control of any employee.
  • “Nonprofit” = Any organization that receives public funds through grants or contracts and qualifies as a nonprofit under the federal tax code. 
  • “Employee” = Includes any person:
    • Employed under a contract with a state or state agency
    • Employed under a contract with any person authorized to supervise, manage, or control employees on behalf of a state or state agency
    • Employed by a public corporation
    • Employed by a contractor who performs services for the state or state agency under a contract to construct a public improvement
    • Employed under a contract with any person authorized by contract to act on behalf of the state or a state agency
    • Employed by a nonprofit organization
    • Serving as a member of a board of directors of a nonprofit organization

Protected Activities: Employees are protected by this statute if they do any of the following:

  • Discuss any of the activities of the state, a state entity, or an person authorized to act on behalf of the state with lawmakers or other elected officials
  • Discloses an information the employee reasonably believes is evidence of:
    • A violation of any state, federal, or local law
    • Mismanagement 
    • Gross waste of funds
    • Abuse of authority
    • Substantial and specific danger to public health and safety

Prohibited Retaliation: An employer covered by this statute is prohibited from taking any of the following actions:

  • Prohibiting employees from making protected disclosures
  • Taking or threatening to take disciplinary action against the employee for making a protected disclosure
  • Requiring an employee to give prior notice to the employer before making a protected disclosure
  • Taking action to discourage, restraining, dissuade, coerce, prevent, or interfere with an employee’s right to make a protected disclosure

Remedies: Employee whistleblowers under this section may seek any of the relief available under ORS 659A.885, including the following:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

The remedies for employee whistleblowing under this section are the same as ORS 659A.199, which applies to both private and public whistleblowers. While there is substantial overlap between the two statutes, there are some significant differences that may warrant consideration. For example, ORS 659A.203 recognizes a much broader range of “protected activities” than ORS 659A.199. On the other hand, ORS 659A.199 prohibits a broader range of retaliatory conduct than ORS 659A.203. Therefore, if you are a public or nonprofit employee who has suffered multiple retaliatory actions, some prohibited by this statute and some not, you may still be able to obtain relief for retaliation not covered by this statute through ORS 659A.199. 

Time to Act: Employee whistleblowers may pursue their remedies by filing a complaint with the Oregon Bureau of Labor and Industries or a lawsuit in civil court within one year of the retaliation. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – lawsuit). 

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for initiating or aiding criminal and civil legal proceedings – ORS 659A.230

Covered entities/persons: Applies to “employers” and their “employees.”

  • “Employer” = Any person or entity that has one or more employees in the State of Oregon.
  • “Employee” = Any person who provides personal service to an employer under the employer’s direction and control, except for certain family members providing domestic services.

Protected Activities: Employees are protected under this statute if they engaged in any of the following activities:

  1. Reported in good faith criminal activity by any other person
  2. In good faith caused a criminal complaint to be filed against another person
  3. Cooperated in good faith with any law enforcement agency conducting a criminal investigation
  4. Filed in good faith a civil proceeding against any employer
  5. Testified in good faith in any civil proceeding or criminal trial

Prohibited Retaliation: An employer is prohibited from taking any of the following actions against an employee due to the employee’s protected activities:

  • Terminating the employee
  • Demoting the employee
  • Suspending the employee
  • Treating the employee differently in any manner with regard to employment opportunities, compensation, and other terms, conditions, or privileges of employment

Remedies: These are the remedies available to employee whistleblowers who suffer retaliation prohibited by this statute:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Additionally, this statute expressly preserves any other rights and remedies and employee may have under common law or other statutory provisions for conduct that constitutes a violation of this statute.

Time to Act: Employee whistleblowers may pursue their remedies by filing a complaint with the Oregon Bureau of Labor and Industries or a lawsuit in civil court within one year of the retaliation. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – lawsuit). 

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for reporting healthcare violations or testifying in unemployment proceedings – ORS 659A.233

Covered entities/persons: Applies to “employers” and their “employees.”

  • “Employer” = Any person or entity that has one or more employees in the State of Oregon.
  • “Employee” = Any person who provides personal service to an employer under the employer’s direction and control, except for certain family members providing domestic services.

Protected Activities: Employees are protected from retaliation under this statute if they engaged in any of the following activities:

  1. Made a good faith report of possible violations of the laws regulating healthcare and residential care facilities
  2. Testified in good faith during an unemployment compensation proceeding

Prohibited Retaliation: Employers are prohibited from taking the following retaliatory actions due to an employee’s protected activities:

  • Terminating the employee
  • Demoting the employee
  • Suspending the employee
  • Treating the employee differently in any manner with regard to employment opportunities, compensation, and other terms, conditions, or privileges of employment

Remedies: These are the remedies available to employee whistleblowers who suffer retaliation prohibited by this statute:

  • Back pay (extending back two years from the date the legal action was filed)
  • Attorney’s fees
  • Court costs

NOTE: There is no statutory right to a jury trial under this law. Therefore, if you want a jury to decide your case, you should consider whether the employer’s retaliation is actionable under other statutes, such as ORS 441.181 or ORS 659A.199 (see above), which may also provide for broader remedies.

Time to Act: Employee whistleblowers may pursue their remedies by filing a complaint with the Oregon Bureau of Labor and Industries or a lawsuit in civil court within one year of the retaliation. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – lawsuit). 

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Whistleblower protections for making wage disclosures or inquiries – ORS 659A.355 

Covered entities/persons: Applies to “employers” and their “employees.”

  • “Employer” = Any person or entity that has one or more employees in the State of Oregon.
  • “Employee” = Any person who provides personal service to an employer under the employer’s direction and control, except for certain family members providing domestic services. However, employees are generally not covered by the protections of this statute if (1) they have access to wage information of other employees as part of their job, and (2) they disclose other employees’ wage information to people who do not have authorized access to that information themselves. But some exceptions may apply. (see ORS 659A.355(2)).

Protected Activities: An employee engages in activity protected by this statute by doing any of the following:

  1. Inquiring in any manner about the wages of the employee or another employee
  2. Discussing in any manner the wages of the employee or another employee
  3. Disclosing in any manner the wages of the employee or another employee
  4. Filing a charge or complaint based on the disclosure of wage information by the employee
  5. Causing an investigation or a legal proceeding to occur based on the disclosure of wage information by the employee

Prohibited Retaliation: Employers may not take any of the following adverse actions against an employee because of that employee’s protected activities:

  • Discharge the employee
  • Demote the employee
  • Suspend the employee
  • Any different or retaliatory treatment in the terms, conditions, or privileges of employment

Remedies: Employees who experience whistleblower retaliation under this statute may seek the full range of remedies available under ORS 659A.885, including the following:

  • Back pay (extending back two years from the date the legal action was filed)
  • Compensatory damages for emotional distress, mental anguish, humiliation, etc.
  • Punitive damages
  • Attorney’s fees
  • Court costs

Time to Act: Whistleblowers may pursue their remedies under this statute by filing a complaint with the Oregon Bureau of Labor and Industries or a lawsuit in civil court within one year of the retaliation. (ORS 659.820(2) – BOLI complaint; ORS 659A.875(1) – lawsuit). 

NOTE: If your employer was a public entity, you will likely be required to provide proper notice of your claim before you can file your case. Generally, this notice must be provided within 180 days.

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Other Oregon Whistleblower Protection Laws

The foregoing list of statutes is not an exclusive list of protections available to whistleblowers in Oregon. Below are several additional statutes, briefly addressed here, that provide additional protections. However, the statutes below are less commonly used by whistleblower attorneys for various reasons. Some of these statutes cover violations that are also covered by another statute that may have broader remedies. However, it is important for your whistleblower attorney to conduct a full review of all available whistleblower statutes because there can be subtle differences between similar statutes that may be determinative of which statute best fits your case. 

ORS 659A.228 – Whistleblower protections for reporting violations of election laws 

This law protects employees from discrimination and retaliation for reporting in good faith violations of the election laws. It only applies to employers, people, and organizations who pay others for obtaining signatures on ballot initiatives and referenda. The remedies are generally limited to back pay and attorney’s fees. There is no statutory right to trial by jury for these cases. If you experienced a violation of this law, you likely also experienced a violation of ORS 659A.199, which provides better remedies and avenues for justice (see above). 

ORS 659A.236 – Whistleblower protections for testifying in legislative proceedings

This law prohibits any retaliation against an employee who has testified in a legislative proceeding. A whistleblower’s remedies are limited to back pay and attorney’s fees. This statute does not provide a right to trial by jury. If you are a public or nonprofit employee who experienced retaliation for testifying in any legislative hearings or committee meetings, you may also have a claim under ORS 659A.203, which provides broader remedies and the right to have your case decided by a jury.

ORS 659A.340 – Whistleblower protections for reporting child abuse or mistreatment of certain vulnerable persons

This law prohibits retaliation against any employee who discloses in good faith information about abuse or mistreatment by certain child care providers, youth detention centers, and residential facilities caring for people with developmental disabilities. This statute entitles the whistleblower to file a retaliation case under ORS 659A.885, but it is unclear what remedies are available to whistleblowers in these cases. If you experienced retaliation prohibited by this statute, you likely have claims under other statutes as well. Some statutes that might provide you clearer and/or additional remedies, depending on the nature of your job, could be ORS 441.181, ORS 659A.199, and ORS 659A.203. 

One important notable difference between this statute and others that might provide whistleblower remedies is that this statute not only covers employees, but also “volunteers” who engage in whistleblowing activities. Therefore, if you were a volunteer that reported abuse or mistreatment and experienced retaliation, this statute could provide meaningful relief that would not otherwise be available to you under other statutes due to the lack of an employer-employee relationship.

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Oregon whistleblowers protected by federal laws

Federal Whistleblower Protections

In addition to the expansive protections provided to whistleblowers under Oregon state law, there are many federal statutes that also prohibit retaliation when an employee engages in certain protected activities. Many of these federal statutes provide similar safeguards and remedies to whistleblowers. 

There may be certain advantages and disadvantages to pursuing your federal whistleblower claims alongside your state whistleblower claims, depending on the specific circumstances of your case and the place where your case will have to be brought (called the “venue”). If you are/were a federal employee, federal whistleblower statutes may be your only protection. 

Whether you decide to pursue your federal remedies is a decision that you should make in consultation with an experienced Portland workplace retaliation attorney. For informational purposes, below is a non-exclusive list of federal whistleblower protection statutes that you and your attorney may want to consider:

  • 5 U.S.C. § 2302 – protects certain federal employees who expose wrongdoing by a government agency
  • 5 U.S.C. § 2303 – protects FBI employees who expose wrongdoing within the FBA
  • 7 U.S.C. § 26 – protects employees who report violations of commodity-trading laws and regulations
  • 11 U.S.C. § 525(b) – protects employees who have filed for bankruptcy
  • 12 U.S.C. § 5567 – protects employees who report violations of laws governing consumer financial services
  • 15 U.S.C.  78u-6 – protects employees who report violations of security-trading regulations
  • 18 U.S.C. § 1514A – protects employees who disclose violations of the Sarbanes-Oxley Act (SOX)
  • 29 U.S.C. § 215(a)(3) – protects employees who have reported or opposed illegal wage and hour practices
  • 29 U.S.C. § 218C – protects employees from exercising their rights under or reporting violations of the Affordable Care Act
  • 29 U.S.C. § 623(d) – protects employees who oppose or testify against age discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA)
  • 29 U.S.C. § 158 – prohibits retaliation against employees who join a union or participate in union activities
  • 29 U.S.C. § 660(c) – protects employees who disclose violations of federal health and safety laws (OSHA)
  • 31 U.S.C. § 3730(h) – protects employees who report violations of the federal False Claims Act or pursue Qui Tam actions to recover money defrauded from the government
  • 38 U.S.C. § 4311(b) – protects employees who perform military service (USERRA)
  • 42 U.S.C. § 1981 – protects against retaliation for those who pursue race and color discrimination claims
  • 42 U.S.C. § 1983 – prohibits the government from retaliating against any person because that person exercising his or her constitutional and statutory rights, such as the First Amendment right to freedom of speech
  • 42 U.S.C. § 2003e-3(a) – prohibits retaliation against employees who oppose or report discriminatory employment practices
  • 42 U.S.C. § 122203(a) – protects employees who oppose unlawful employment practices in violation of the Americans with Disabilities Act (ADA)
  • 45 U.S.C. § 60 – prohibits employers from retaliating against any employee who reports a work injury under the Federal Employers Liability Act (FELA)
  • 49 U.S.C. § 42121 – protects airline employees from retaliation for disclosing or reporting violations of the FAA regulations or other laws governing airlines
  • 49 U.S.C. § 20109 – prohibits retaliation against employees who report violations of the Federal Railroad Safety Act (FRSA)

For a list of additional federal whistleblower statutes, you may wish to visit the United States Department of Labor’s website here

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Best Practices for Whistleblowers

Whistleblowers who speak up against unlawful employment practices or other illegal corporate activities can have a meaningful impact on how companies operate. For example, a study in 2017 found that companies subjected to whistleblowing reports showed significant decreases in financial misreporting and tax avoidance in the two years that followed. Another well-known case involved Jeffrey Wigland, a tobacco researcher, who blew the whistle on the Brown & Williamson Tobacco Corporation, claiming that the corporation knew tobacco was addictive. This whistleblower’s actions prompted widespread regulatory and policy changes affecting the tobacco industry.

But while these cases demonstrate the positive impact whistleblowing can have on a company and our society, they also demonstrate the very real risk of retaliation that whistleblowers face. The data from the 2017 whistleblower study was only available because hundreds of employees were retaliated against and filed whistleblower complaints with OSHA. And Mr. Wigland suffered one of the most egregious smear campaigns ever levied by a corporation against one of its employees. 

Not all whistleblowers face retaliation though. And there are steps you can take to protect yourself while you do the right thing. Whistleblowers are less likely to experience retaliation if their employers know they have activated their legal protections. 

While no two cases are alike, and different cases often require different approaches, below are some general guidelines for you to consider if you decide to report wrongdoing by your employer or co-workers.The guidelines below are informational only and describe the general framework for how to make a whistleblower report. These guidelines should not be considered legal advice for your particular case. As with any employment-related legal matter, we strongly encourage you to consult with an experienced whistleblower retaliation attorney who can give you tailored advice and recommend a strategy to obtain the best outcome in your situation.

1. Determine Your Statutory Protections

The starting point before taking any whistleblower action is to find a statute that offers you protection. Whether you are protected or not may well be the determining factor in deciding whether to complain. 

Finding a statute that protects you can be an arduous task. Whistleblower protection statutes are not neatly compiled together in one section of our statutory codes. Rather, these powerful provisions are often found buried in a sea of dense legal text, disbursed among volumes of state and federal laws covering a multitude of subjects regulated by our government. And once you find the statutory provision you are looking for, you often also find that its meaning and directives are obscured by legalese and cross-references a myriad of other statutes that you will also need to locate and understand.

To give you a headstart on your journey, I have compiled a lengthy list of whistleblower protection statutes for you to review for potential protections, although not every whistleblower statute is listed. There are quite a few more federal whistleblower statutes than those listed above (over fifty total at last count). However, I generally limit my practice to state law cases, so I have covered those statutes in more detail. 

Whether you are protected under any of the foregoing statutes or others will depend on the type of job you have, the nature of the conduct you blow the whistle on, the type and size of your employer, and what state you are employed in. Once you have identified a potentially applicable statute, you will need to review the language of the statute and any associated regulations very closely, as they will generally specify what you need to do to qualify for protection. Following these statutory mandates is critical for safeguarding your rights.

If you would like help in determining any statutory protections you might have, you can call or message me and I’ll be happy to talk with you. 

2. Make Sure Your Disclosure Is Protected

One of the primary requirements a whistleblower must satisfy is that the specific disclosure the whistleblower intends to make is one that is protected by law. Understanding what is a “protected disclosure” under the applicable whistleblower statute is critical for determining whether you have protections. When making the disclosure, you must make sure that your report contains sufficient information about the type of wrongdoing the law wants reported for the disclosure to qualify as “protected.” 

For example, if you saw someone illegally dumping chemicals into the Willamette River, you probably need to do more than send an email saying, “Dear Boss – I have some concerns. Let’s discuss.” In that instance, your report says nothing about any violations of state or federal environmental laws or regulation, or any other illegal behavior, so it is not likely a protected disclosure under a whistleblower statute. If your boss fired you because she didn’t want to hear about the “concerns” you referenced in your email, you likely would not have any recourse because your disclosure was insufficient to identify any violations of law.

If you are complaining about illegal conduct, it’s best to be direct about what your concerns are, while still being tactful in your tone. Try to voice your complaint from a place of concern rather than sounding angry or threatening. If you are aware of a law that is being broken, it is best to specifically reference that law in describing the violation. At the very least, you want to be descriptive enough so that someone reviewing the disclosure could discern a violation or possible violation from the situation you describe.

3. Make Your Disclosure To The Right Person/Place

Another common requirement for whistleblower protection is that you report your concerns to the appropriate party. A misstep here could leave you without protection. Some whistleblower statutes are very specific about who you must make your report to, in which case those statutory directives should be followed. Other statutes may not identify a specific person or place, but there may be court cases where judges interpret the statutes as requiring the disclosure to be made a certain way, even if not explicitly required by the statute itself. So careful research may be necessary to identify where your disclosure needs to land in order to trigger your protections. 

This is so important it bears repeating. You must direct your disclosure to the right place, otherwise you may not be protected from retaliation. Some whistleblower statutes will allow you to simply blow the whistle to the person who committed the wrongdoing, while others require that you blow the whistle to someone other than the wrongdoer. Some statutes may allow you to blow the whistle to someone within the company, while others may require that you make your complaint to outside authorities for protection. Still others may require you to blow the whistle internally first, then go to outside authorities later.

Knowing where to make your complaint is key for protecting your rights. If the statute is unclear, you would be well-advised to consult with a Portland workplace retaliation attorney to get the advice you need to protect your interests. 

4. Document Your Protected Activity

There are times when a verbal conversation is the best way to resolve a workplace issue, but not when making a complaint of managerial or corporate wrongdoing. Employers commonly try to defend whistleblower retaliation cases by disclaiming any knowledge of the whistleblower’s complaint. They argue that they couldn’t have retaliated against the employee for whistleblowing because they didn’t know the employee blew the whistle in the first place. We see employers rely on this argument most often in cases where the whistleblower made their complaint verbally, either in-person or during a phone call. 

Even when the person who receives your complaint assures you that it will be documented and taken seriously, the reality is that any documentation, if it was created at all, is not likely to exist by the time your case enters litigation, especially if it substantiates your claims. 

In some companies, HR and managerial personnel are specifically trained to NOT document an employee’s verbal complaint, just so the employer can maintain plausible deniability about whether the complaint ever occurred. In the few cases where the employer actually created documentation and kept it, we frequently see that the employer’s notes of the conversation rarely align with how the whistleblower remembers it, and any information harmful to the employer is usually “sanitized” from the document. What we are left with is a cursory summary of a conversation that is usually devoid of any reference to information that might suggest you engaged in “protected activity.” 

For these reasons, it is most prudent to document your disclosure in some form or fashion. This will allow you to avoid any dispute about what was said, when it was said, and who it was said to. I generally find the best way to cover these bases is to send a complaint or report by email. Second best would be a written memorandum or letter, but unless you transmit by fax or certified mail, you will risk that your complaint will get mysteriously “lost.” As a last resort, if you make your protected disclosure verbally, you should take notes during or immediately after your conversation and provide as many details as you can while they are still fresh in your head. Then you will have your own notes to support your version of the conversation should your employer dispute what you said (and they often do). 

A word of caution is warranted here: In this day and age, for better or worse, technology and electronic devices are integrated into almost all facets of life. We use them to communicate, stay in touch on social media, conduct internet research, snap memorable pictures, and countless other things. There are dozens of voice recording apps available for smartphones. If you decide to report your concerns verbally, you might ask yourself why not just record the conversation? 

The reason you should think twice about making any surreptitious recordings in the workplace is that you could be subjected to criminal and civil liability, depending on the state you are in. Oregon makes it a Class A misdemeanor to record an in-person conversation without giving the other parties notice that you are recording them. ORS 165.540(1)(c). Aside from the risk of criminal prosecution, a recording obtained in violation of this statute is of no use to you – the court will not let you use it in your civil whistleblower case to prove you engaged in “protected activity.” ORS 41.910. Therefore, the best practice for protecting your whistleblower rights is to document your disclosure in writing.

5. Hope For The Best, Prepare For The Worst

Many employees do not consider the potential for “blowback” before reporting their concerns, much less take steps needed to protect their legal rights. When they suspect their company broke the law, they rightly believe it is their job as a loyal employee to promptly bring those issues to the company’s attention so they can be addressed. After making a report, employees expect that the company, in turn, will take their concerns seriously and respond appropriately. They might even expect their managers will be appreciative for their willingness to “do the right thing.” 

Unfortunately, these hopes and expectations often prove to be naive. Corporations do not give out annual “whistleblower awards” to employees who expose the most wrongdoing. Perhaps your company fosters a culture that welcomes whistleblower complaints, but in my experience, most companies only pay lip service to the importance of internal whistleblowing. They have strongly-worded written policies and virtuous-sounding “Codes of Conduct” that encourage employees to bring their concerns forward and promise no retaliation will come to those who speak up, but the company’s actions after a whistleblower tip often reveal that the company has different policies and codes than the ones they put in writing.  

Employees who disclose corporate wrongdoing often find themselves the target of retaliation. Sometimes the retaliation can be overt and obvious, but that scenario is the exception rather than the rule. More often, the company’s retaliatory reaction to the whistleblower’s disclosure is very subtle. It might begin with a change in attitude or demeanor – the whistleblower’s supervisor was once friendly and supportive, but now is cold and disinterested. Petty issues become a serious problem when they weren’t before. Work assignments get heavier. Job performance is nitpicked and scrutinized. Unfair disciplinary actions begin to issue. Eventually, the situation deteriorates to the point that the employee is forced to quit or face termination. 

Whether you have already blown the whistle or are getting ready to, it is critical that you take steps to defend yourself and your career from the possibility of retaliation. If you are still employed, you are in the best position to collect and preserve evidence that might be critical to proving a wrongful termination case in the event you are ultimately fired. Below are some categories of evidence you may be in a position to lawfully collect:

  • Job descriptions – This will be important for establishing the scope of your job duties and the role you held in the organization. The contents of your job description may determine whether you have protections under certain whistleblower statutes or not.
  • Performance reviews – When an employee’s performance reviews suddenly get worse after the employee engages in protected activity, courts can infer that the precipitous change was due to retaliation rather than the employee’s job performance. 
  • Employee handbooks & policies – Sometimes employers are overzealous in their attempts to get rid of whistleblowers, and they might violate their own policies and procedures. For example, if the attendance policy in your handbook says you can accrue a certain amount of points before receiving discipline and your employer disciplines you before you have accrued the necessary points, your employer’s failure to follow its own policies is evidence of retaliation.
  • Emails/memos/communications – Any communications that relate to your whistleblower disclosure have obvious relevance and should be kept. If your employer is scrutinizing your job performance or making false accusations about your conduct, you will also want to keep any communications relating to those issues to help you show they are illegitimate. Conversely, any communications demonstrating that you were doing a good job will also help your case. If your supervisor has all of a sudden become passive aggressive or hostile towards you in emails, keeping examples of those emails, as well as emails demonstrating a different demeanor before your complaint, will help you show how the work environment shifted after making your complaint.
  • Disciplinary actions – You will want to keep copies of any disciplinary actions you received for the same reasons you will want to keep your performance reviews. 
  • Termination paperwork – If you are ultimately fired in retaliation for reporting wrongdoing, your termination paperwork will be important for your attorney to review. The reasons identified in the termination paperwork set forth the battle map for the wrongful termination case to come. If your employer attempts to justify your termination for reasons that are not included in your termination paperwork, courts can conclude that your employer is “expanding” its reasons because the reasons it gave initially are illegitimate. And evidence that your employer gave illegitimate reasons for your termination is also evidence that the true reason was retaliation.

While current employees should diligently preserve evidence while they still have access to it, this does not mean you have the unfettered right to take any documents you want from your employer. Courts generally recognize that whistleblowers have the right to preserve evidence that they have access to as part of their jobs. But you are not permitted to take information or documents that you ordinarily do not have access to, and doing so could seriously jeopardize your case and even subject you to counterclaims from your employer in a later lawsuit. 

You should also be careful about taking documents that contain highly sensitive information about other employees, customers, patients, etc. Although some whistleblower laws specifically allow you to retain confidential information for purposes of reporting violations to authorities, you must tread lightly here because of the significant risk of criminal and civil liability if an exception does not apply. If you have any questions about whether you are permitted to retain information you obtained through your employment, you should seek guidance from a qualified employment lawyer.

6. Retain a Highly Qualified Workplace Retaliation Lawyer

If you are thinking about reporting corporate wrongdoing, or have experienced retaliation for doing so, the best way to protect yourself and your career is to get help from an experienced whistleblower retaliation lawyer.

Even under the best of circumstances, making a whistleblower complaint can be confusing and intimidating. The risk of endangering the whistleblower’s employment, financial stability, and reputation is very real. Employees need sound guidance and an effective strategy before making a report of corporate wrongdoing.

A Portland whistleblower attorney can help you devise the best legal strategy to protect your rights and interests. 

If you already made a whistleblower report, you have done the right thing. You don’t deserve to be punished for it. You need someone with as much courage as you. I take the fight to businesses who bully and retaliate against whistleblowers. I would be honored if you gave me the chance to fight for you. 

If you have a whistleblower issue you would like to discuss, please don’t hesitate to give me a call. I would be happy to provide you with a free consultation to see if you have a situation I might be able to help with. 

You should act quickly. Some whistleblower laws have very short statutes of limitations and require you to take prompt action in order to be protected. 

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