Blowing the Whistle: How to Be a Whistleblower Safely

A question of ethics...

The first step to becoming a relator (i.e. whistleblower) is feeling a sense of frustration or anger over what you know to be inappropriate conduct at your place of work.

The cause of this dissatisfaction can be a pattern of abuses or a single event that continues to bother you.

Common pattern of abuse examples includes when a healthcare company is constantly overbilling Medicare for patient services. (FCA Violation)

An example is when an investment firm has falsified data to defraud investors and increase profits. (SOX Violation)

Concerned employees typically decide to voice their opinion. This leads directly to the second stage in deciding to blow the whistle.

Raising Your Concerns Internally...

At this point most people internally report on the issues they are concerned about directly to their company.

An employees internal reporting of the issue to their supervisor or human resources is usually in good faith. The intent is to expose the problem they uncovered.

Companies have two different approaches to this situation.

1. Honest Companies - Employers understand your concern and make the necessary and proper changes internally to remedy the situation. You are never exposed as the whistleblower and your complaint was used to raise awareness and correct the situation. The company self-reports and resolves all conflicts.


2. Dishonest Companies - They are aware of your concern and take action against you. This is retaliation. Termination, demotion, blackballing and harassment are all violations of the whistleblower protection laws. The company knowingly ignores and continues the illegal activities you made them aware of.

In both cases companies are liable for misconduct.

Honest companies, that properly address issues, lessen the motivation of whistleblowers to take further action.

Dishonest companies inflame the situation with their reaction and cover up - pushing the whistleblower to the tipping point.

Company Fails to Respond...

Every person has their tipping point. When they decide their values and sense of right and wrong is being violated.

Individuals contemplating reporting will all reach this point. The cause usually is bullying and retaliation against them for trying to help.

Common examples of what whistleblowers hear when they bring up the matter internally:

• “Don’t ever mention fraud in my office again”
• “Stop with this ethics crap”
• “You’ll go down for this too”
• “Bring it up again and you’re gone”
• “You’re not a team player”

After this people have two simple choices. Do nothing or take action outside your company.

Seeking Options for a Safe Course of Action...

This stage commonly sees the whistleblower scouring the internet looking for similar stories - researching their options.

They look for reassurance that they can act safely and that doing so will result in a positive outcome.

The easiest way to report misconduct is through federal programs.

Links to report anonymously:

• OSHA - https://www.whistleblowers.gov/
• Department of Justice - https://www.justice.gov/civil/report-fraud
• Office of Inspector General - https://forms.oig.hhs.gov/hotlineoperations/report-fraud-form.aspx
• More DOJ Links - https://www.justice.gov/criminal-fraud/report-fraud

These sources provide a path to report misconduct anonymously, but positive outcomes are less likely.

The Justice Department strongly recommends “individuals obtain legal counsel before filing”. ^[6]

Seeking to Make Things Right...

Appropriate legal counsel is retained, and after review of the case details - they decide to proceed with a qui tam lawsuit in an effort to make things right.

Despite the Granston memo, cases with legal merit continue.

Whistleblowers can still remain anonymous after securing legal representation and now have an advocate on their side.

After people retain representation with representation they feel a sense of relief.

They now know the next steps they need to take, and that everything is being done to see the company doesn't get away with it.

What your attorney will need when you first becoming their client:

• All the information you have about the company’s misconduct
  Attorney Tip: (Don’t assume you know what your attorney needs. Tell them everything even if it seems minor. They know the law and how to apply it)
  
• Any physical evidence you have
  Attorney Tip: (Provide all documentation of misconduct you have. Emails, reports and company records are powerful evidence.)
• If your employer retaliates against you after exposing the behavior in question
  Attorney Tip: (Employer retaliation is not always obvious. Companies will blame other factors for their actions against you.)

After presenting everything you know, your legal team will determine if the following are necessary to successfully take on and win your case.

• Gathering more evidence to help prove your claims (emails, documentation, reports, etc.)
• Filing under proper statutes like FCA, SEC, SOX, OHSA, etc.
• Which district/circuit court to file your claim for greatest chance of success
• Continuing your career at the company or quitting.
• Whether employer actions are retaliatory. This potentially leads to an additional case for remedy
• What is the estimated settlement you could receive
• Preparing you for how long the legal process takes

In most cases your law firm now has what they need to proceed to the next phase of a whistleblower’s journey: filing a claim.

For those who retain legal representation the claims process is simpler since an attorney will file your claim.

Generally, the initial complaint will be filed with the US Attorney's Office and/or the Department of Justice.

Submitting a complaint begins the Government investigation into the alleged misconduct. At this point records are confidential. Only you, your attorney, and the investigators know about the case.

This can be an exciting and difficult time for anonymous whistleblowers who remain employed at the company under investigation. They will see and speak to investigators at their place of work.

Companies are typically in a panic trying to figure out how to justify their actions, hide evidence and uncover the whistleblower. Retaliation is most common at this point.

Using an attorney allows you to remain anonymous and helps you identify retaliatory conduct.

Government investigations will conclude once they have enough evidence to officially prosecute the case. If they are unable to obtain enough evidence to substantiate your claims they can decide to dismiss it.

If the Government authority decides to pursue the case, they will work on your behalf with the help of your attorney.

When the Government drops your case, it does not mean it is over. You and your attorney can decide to continue the case privately without the Government’s help. If you win the rewards are greater.

Whistleblower cases follow a general timeline.

• A complaint is filed
• The investigation takes place
• Cases are brought to trial
• Resolution / Settlement is reached

This chain of events is not always the same.

Each program has different rules and regulations that can affect the timeline of cases.