The False Claims Act prohibits employers in New Mexico and around the country from taking retaliatory action against workers who expose fraud or other illegal activity. Employers may not suspend, demote, harass, threaten or fire workers who report or threaten to report wrongdoing, but the landmark law does not include constructive dismissal among its list of prohibited forms of retaliation. Issues such as this are generally left to the courts to resolve, and a case involving whistleblower protections was heard earlier in 2018 by the U.S. Court of Appeals for the 6th Circuit.
Sources indicate that only 10 percent of people who are victims of harassment in the workplace in New Mexico and the rest of the country will file an official complaint. Their reluctance to do so is linked to the belief that their concerns will not be taken seriously or that they will be retaliated against. According to a 2016 report issued by the U.S. Equal Employment Opportunity Commission, both concerns have grounds.
Federal employers and employees in New Mexico should be aware that the Office of Special Counsel has issued three new memos regarding whistleblower policies and guidance. The memos were released on Feb. 1.
New Mexico residents filed fewer civil rights complaints against their employers last year according to the federal agency in charge of regulating anti-discrimination laws in the workplace. New Mexico is not an outlier as the number of claims nationwide also declined, which has been the trend since 2010. The Equal Employment Opportunity Commission (EEOC) recently released its report of claims enforcement data for fiscal year 2017, which ended in September.
Workers in New Mexico received a strong message that the law considers companies liable for damages when they retaliate against employees who report unlawful activities. A jury has sided with a man fired by his company, an asbestos removal company, after he blew the whistle on improper asbestos handling.
Employers generally cannot discriminate against their employees. However, roughly half of claims submitted to the EEOC are related to what happens after a discrimination claim is made. If an employee in New Mexico or anywhere else is subject to adverse action after taking part in a protected activity, that behavior may constitute discrimination. Generally, there must be a link between someone partaking in the protected activity and his or her employer's materially adverse action.
Reporting injustice or illegal activity in the workplace can be intimidating. There's a fear of retaliation or losing your own job for advocating for your rights or the rights of your coworkers.