Blowing the Whistle Safely:
What Protections Can Insiders Who Report Fraud & Abuse Expect

Protecting Whistleblowers
What Everyone Who Reports Misconduct Should Know

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People who come forward need to be protected from the threat of retaliation, intimidation, abuse, harassment and even physical harm in some cases.

While the law provides a path for redress, it doesn't prevent employers from taking illegal action.

 

To encourage people to report fruad and misconduct, the Government offers special protections and rewards for whistleblowing.

The False Claims (FCA), Dodd-Frank and the Sarbanes-Oxley (SOX) Acts were passed by Congress to ensure whistleblowers have federal protetions that encourage them to blow the whistle on fraud safely.

 

The Whistleblower Protection Act of 1989 protects employees from adverse consequences when they report actions they reasonably believe are violations of the law. ^[2]

An important distinction for those reporting misconduct is these laws can't stop companies from retaliating, but instead provides a path for redress when they do.

The Federal Government attempts to shield and does protect relators (i.e. whistleblowers) in two important ways:

• 1.     Punishment:     Imposing severe penalties against companies that are guilty of whistleblower retaliation.


• 2.     Prevention:     These severe penalties and whistleblower rewards discourage companies from committing acts of retaliation against relators.

 

These two concepts are the foundation of the Whistleblower Protection Act.

By punishing companies who take retaliate against employees, prevention and protection is provided.

The following will give you a better understanding how to protect yourself, and what your whistleblower attorney can do to see you safely through the process.

You will learn exactly what representation CAN and CAN'T accomplish for their clients.

Because this is a comprehensive guide, we have included a table of contents for your convenience below.

3 Things Your Whistleblower Lawyer Can Do

What protections can your attorney provide?

• Privacy: Your representation will do everything possible to ensure the whistleblowers status remains a secret. While it's not always possible to keep to remain anonymous, your lawyer will use applicable laws to protect your identity and proceed with as much confidentiality as legally possible.
• Rules: Various state and federal laws are at play in what can quickly become a complex process. Even with the best intentions whistleblowers can unkowingly violate the law, and missteps can jeopardize the case and expose them to liability. Retaining experienced counsel ensures the rules are clear and the process is navigated safely.
• Redress: If the whistleblower's identity is known, it's not uncommon for companies to retaliate. It is illegal to do so to an employee for filing a whistleblower claim. When they do so, your lawyer can take legal action to seek redress for damages.

How are Whistleblowers Protected Legally

Reporting misconduct is a protected act and the individual can seek redress if retaliation is proven.

Employers violating the law if they take adverse action against an employee for engaging in a protected activity.

Protected activities are actions that employees can take part in without fear of employer retaliation.

Reporting companies for what you reasonably believe is fraud is considered a protected activity.

 

Some examples of protected activities are:

• Reporting to a supervisor that research data is being falsified
• Informing the US Attorney’s Office of Medicare upcoding within a medical practice
• Filing a claim under the FCA that a company is overbilling defense contracts
• Notifying the SEC that a bank is selling mortgage to unqualified buyers

When these violations are reported companies can take drastic actions to try and mitigate their exposure.

Often times there are a variety of actions they take against their employees and whistleblowers.

Most common forms of retaliation against whistleblowers:

• Termination - Loss of job / fired
• Outing - Exposing of the persons whistleblower status
• Harassment - Offensive behavior, or a work environment a reasonable persona would consider intimidating, hostile, or abusive
• Adverse Employment Actions - Demotions, loss of status, employment opportunity or position
• Forced Resignation - Constructive discharge
• Blackballing - Spreading rumors, excluding the employee from industry participation
• Any other form of discrimination resulting from taking the protected action

These forms of retaliation can happen before, during or after cases are filed.

Knowing your rights and the potential for legal recourse when the protection laws are broken enable you to better evaluate the risk.

Don't be caught unprepared.

 

 

Legal Options by Adverse Action

 

Termination Protection

Firing an employee who has reported, or is considering reporting, on what they believe is a violation of Federal or States laws is illegal. Taking a legally protected action and being fired as a consequence is a violationof the law and considered wrongful termination.

Form of Protection: Employers are required to reinstate whistleblowers to their former position and may be held liable.

As your representative, lawyers work on your behalf to ensure companies understand a loss of employment will result in legal action and reinstatement if they fire you. They also advise you on potentially large retaliation settlements which enable you to quit your job.

 

Outing Protection

The court has upheld that exposing a whistleblower within the company is an adverse action. Whistleblower outing can prevent fraud reporting and/or cause emotional damage after reporting.

Form of Protection: Individuals may seek compensation for damages from the employer who exposed them as the whistleblower.

This form of protection allows for noneconomic damages to be awarded. This includes compensation for pain & suffering, humiliation and loss of happiness of activities. These are punitive damages.

 

Harassment Protection

Whistleblower harassment occurs when offensive conduct is directed at an employee for engaging in a protected activity like reporting on fraud or violations of the law.

Form of Protection: Whistleblowers are protected under workplace harassment laws and are awarded damages based on the severity and scope of the employers illegal acts.

To win a whistleblower harassment case causation should be proven. In other words, a link between the whistleblowing and the harassment. Experienced attorneys will advise you on what evidence to collect to prove your case. Don’t wait. Once a case is filed this evidence will be difficult to secure.

 

Demotion Protection

Demoting, transferring or relocating an employing who relates fraudulent actions is considered a retaliatory action.

Form of Protection: Companies are prohibited from demoting whistleblowers and must reinstate employees to their former positions and make them “whole” again. Some cases allow for double back pay to be awarded.

Demotion must be correlated with a protected whistleblower activity. Once proven relators do not have to return to work. They can receive back pay and future earnings settlements. If they choose to return to work they are still protected from demotion linked to whistleblowing.

 

Forced Resignations

Constructive discharge/dismissal is when a employee resigns as a result of the employer creating a fraudulent work environment.

Form of Protection: Recent rulings have added constructive discharge as a prohibited whistleblower retaliation action. Employers a liable for creating a workplace where fear has resulted in an employee’s resignation.

When an employee is forced to choose between resignation or the continuance of illegal activities, their employer has created a hostile work environment. Whether or the not the employer intentionally created this atmosphere does not matter. ^[4]

 

Blackballing / Blacklisting

Excluding a current, former or future employee from participating in a specific business arena after they take part in a protected activity is a violation.

Form of Protection: Protection laws make it illegal for companies to spread rumors about a whistleblower them in order to have them blacklisted from a particular industry.

This form of retaliation rewards whistleblowers with pain and suffering damages once proven. The settlements are high since a company has blocked your ability to find employment in your chosen profession.

 

It's important to note the protection laws cannot prevent parties from violating the rights of those who whistleblow, but it does expose them to liability when they do so the individual can take further legal action.