Thinking About Whistleblowing?

Is whistleblowing something you do intentionally OR can it happen just because you are telling the truth to a supervisor? What does it mean to be a whistleblower? What kinds of things should someone think about when whistleblowing? 

Am I a Whistleblower?

A whistleblower is a popular term for people who report illegal conduct. The laws enacted by Congress and the state legislatures tend not to define a whistleblower or use the term "whistleblower." Instead, laws refer to individuals who are retaliated against at work or discriminated against on the job because of actions they take to:

1) oppose or investigate wrongdoing;
2) assist another person in an investigation of alleged illegal conduct;
3) report wrongdoing to proper authorities, such as a supervisor or the government; or
4) testify in legal proceedings.

A whistleblower generally is someone who reports wrongdoing (by a co-worker, employer, or other person or company) to a person in a position of authority or publicly, as to the media. More specifically, in a legal sense, it usually means someone who observes or learns of illegal activity, or at least activity believed to be unlawful, and reports it either to (1) a supervisor in the organization where the whistleblower is employed or (2) to a governmental agency with responsibility to investigate or enforce laws regarding the alleged wrongdoing.

Quite often, the term whistleblower is used when an employee opposes illegal acts of an employer and makes a report of the misconduct to an outside government agency or to the media. Sometimes, a whistleblower is someone who simply testifies truthfully in a legal hearing or other proceeding.

Some whistleblowing is protected by state or federal laws, such as the False Claims Act, the SEC whistleblower statute, and various state and federal anti-retaliation employment protections.

Should I talk with others about the wrongdoing that is happening?

Generally, yes, you should.  However, you need to be careful in the communications that you have. Careful inquiry with trusted co-workers is one thing. You certainly can and, in most instances, probably should report to management or proper Government authorities any criminal wrongdoing within the company.

You should be thoughtful and plan your reporting and the timing of the reporting.  Telling your supervisor that what he is requiring is wrong may not be very effective and may only backfire. Company ombudspersons and hot-line call investigators, moreover, often will contact the wrongdoer directly to investigate wrongdoing, rather than inquiring through more reliable sources. Be aware that even using so-called “anonymous” hotlines can trigger retaliation—it may actually cause it to occur. In all cases, you should document in writing any internal reporting that you do by printing your email and sending the email to a personal (not work) address.

You should be very careful in any communications involving your intentions to visit a lawyer or file a lawsuit. It is best to actually talk with the lawyer before communicating on this topic.

Finally, for those who can bring qui tam actions–actions filed by private parties on behalf of the government–the False Claims Act gives priority to the first whistleblower who files a False Claims Act qui tam action.  Idle chatter could result in a co-worker "winning" such a "race to the courthouse."

Do I have to have written documentation of the violations of law?

No, but it sure helps. Documents will likely be critical in determining whether you can receive legal  protection as a whistleblower and whether the government supports your allegations. The type and amount of your documentation is going to be very important. It helps to have diaries and logs kept by you of fraudulent activity, but actual documentation from the company records will strengthen your case.

Without copies of documents, your accusations could turn into a battle of your word against a group of powerful and sophisticated company executives. As an example, records of billings, memoranda, time cards, and computer printouts can be very helpful depending on what the fraud scheme is. However, be aware that it could be illegal to remove certain company records.  You should be very careful in how you handle proprietary or trade secret documents or confidential medical records. HIPPA privacy laws contain some exemptions when documents are used to report Medicare or Medicaid fraud.

Should I keep a diary or other “log” of what is happening at work or to me?

Yes. A diary or log of events could be very helpful.  You should keep track of dates, who attended meetings, what was discussed, and any special remarks or statements that were made. Keeping a log that has both routine work-related facts and events and whistleblower-related events should help you pinpoint, independently of the log, when certain events or conversations occurred.

Any log or diary should not include very personal information that you would not want others to see later and should not contain overstatements or overly subjective comments.

The nonprofit whistleblower support group, Government Accountability Project ("GAP"), recommends that, if something particularly significant happens, you mail yourself a memo so that you will have a postmark verifying the date of the event.

What causes someone to be a whistleblower while others seem content to go about business as usual?

What causes one person observing egregious wrongdoing to lose sleep every night until the individual notifies the authorities--while others who witnessed the same events simply keep going forward with the daily tasks of everyday life as if nothing special had occurred? The answers are not simple.

Being a whistleblower is not usually easy. Most whistleblowers are not out looking for wrongdoing or fraud committed by their employer or others.  Instead, they find themselves in a position where, to protect themselves or others, they have little or no choice but to either become part of the wrongdoing or oppose and report it to proper authorities. In short, most whistleblowers are simply "trying to do the right thing."

Whistleblowers are sometimes portrayed in the media as "lone wolves."  But, it is common for whistleblowers to be individuals who are leaders at work or are active in their community or profession, who are involved in extra activities at work, in their neighborhood, or through a faith-based group.  Many are also soccer coaches, youth group leaders, tutors for underprivileged children, union stewards, and volunteers in clubs, schools, and organizations. Even before they became whistleblowers, these are people who have seen a need or recognized that something needs fixing and have stepped in to help where others did not.

Is all retaliation by an employer whistleblowing?

No. Whistleblowing does not normally include an employer’s retaliation because of routine complaints about on-the-job personal problems or issues that affect only a single person. Actions that are considered whistleblowing tend to focus more on conduct prohibited by a specific law and that causes damage to the public at large, to the taxpayers in general, or to our general public interest in a fair, efficient, and just government.

Some instances of retaliation are illegal, such as an employer firing an employee because she filed an EEOC charge alleging sex discrimination. But, this type of retaliation is not normally considered whistleblowing, because the events concern an individual person’s employment status, as opposed to wrongdoing that involves those outside the place of employment or endangers the general health and safety of an entire city population.

Can whistleblowing occur outside the employment situation?

Yes. Some whistleblowers are community activists, competitors of a Government contractor, muckraking news reporters, or ordinary citizens who encounter wrongdoing that will not be corrected absent public exposure or even prosecution. The False Claims Act recently was amended by Congress to add retaliation protections for contractors and subcontractors, even if they are not employees.

Do I have to file a lawsuit to be a whistleblower?

Absolutely not. In most instances of whistleblowing, no lawsuit will occur.

SEC and IRS whistleblowers may report fraud and apply for a reward without filing a lawsuit. If they choose, SEC and IRS whistleblowers may remain anonymous.

Once I decide to become a whistleblower, should I file a lawsuit?

Maybe yes, maybe no. No one can completely answer this question for you. A lawyer can give you advice about whether you have a claim that can be addressed under the law.  The lawyer may be able to suggest ways to protect your job, even without a lawsuit.  Or, a lawsuit may offer you potential for a substantial damages award.

Ultimately, while a lawyer can provide you with advice and information, only you can decide whether to pursue a lawsuit. You are in the best situation to determine whether it is what you need to do.  Ask yourself whether your family and friends will support you.  Realistically assess whether you or your family can financially afford the negative repercussions, including loss of your job or your ability to continue your chosen career, all of which could occur.

Before you decide to go forward with legal action, you need to make sure that what is occurring is really serious or illegal. Often, individuals who were treated unfairly at work or who were unjustly passed over for promotions lose some of their objectivity. It becomes difficult to separate the pain of what occurred in the past from the current events. And, sympathetic friends and family may not be the most objective advisors in such a situation. Ask yourself—what is the worst thing that will happen if this wrongdoing continues? If the wrongdoing is not likely to cause serious harm to the Government or others, whether physically or financially, make sure that the issues are otherwise worth fighting about and risking your job, your financial security, and maybe even your emotional health.

Being a whistleblower and filing lawsuits can be very difficult endeavors and should not be pursued without planning, preparation, and having a fight worth fighting. Prolonged battles over "principle" that have no lasting effects, other than to try to prove that you were right and someone else was wrong, are not a good idea. If your battle is about "the principle of the matter," you need to declare a winner (you) and a loser (them) and move forward in your life.

What organizations exist to assist whistleblowers?

There are several organizations and non-profit groups that publish written materials for whistleblowers and their lawyers and provide other assistance to whistleblowers.

These organizations and their websites give whistleblowers information on whistleblowing:

Government Accountability Project (GAP)
Project on Government Oversight (POGO)
Taxpayers Against Fraud (TAF)
Public Employees for Environmental Responsibility (PEER).

GAP offers a comprehensive handbook for whistleblowers. TAF has a variety of materials, aimed at those who may have False Claims Act qui tam claims, SEC claims, and IRS Whistleblower claims.

Do you have to be an American citizen to pursue a False Claims Act, SEC, CFTC, or IRS whistleblower claim?

No, you do not need to be an American citizen to pursue a False Claims Act or other whistleblower case. False Claims Act, SEC, IRS, and CFTC fraud claims can be filed by whistleblowers who live outside the United States. It is not required that a whistleblower be an American citizen.

While most whistleblowers live in the United States, it is not necessary for a whistleblower to be an American citizen to blow the whistle. The American legal system encourages whistleblowers from any place on the globe to report wrongdoing that hurts our democracy. At times, only people close to the fraud have the knowledge to bring a whistleblower case. That may mean that the whistleblowers are citizens of countries outside of the United States. Our firm or our lawyers have represented whistleblowers who are citizens of  the United Kingdom, India, Poland, and Germany.  Several clients of the firm lived outside the borders of the United States while blowing the whistle. 

Can whistleblowers keep their names and identities secret or confidential?

Yes, a whistleblower's name and identity can remain confidential in SEC, CFTC, and IRS whistleblower bounty cases. These are the three primary federal laws that permit a whistleblower's identity to be known only to the affected government agency and not to the public.  Many whistleblowers like the idea of preserving  confidentiality. But, most whistleblowers want the public to know about the fraud and want to encourage others to disclose wrongdoing, so they want their stories known and their identities revealed. 

Aside from the  SEC, CFTC, and IRS whistleblower bounty statutes, most other whistleblower lawsuits do not allow whistleblowers to protect their names and identity. Under the False Claims Act qui tam provisions, a case is sealed when it is filed. At the time of filing a False Claims Act case and for a year or more thereafter the whistleblower's name is usually confidential.  Most importantly, the defendant in a False Claims Act case does not know that the whistleblower has filed a case--this is very different from ordinary litigation, which is almost always public from the day the lawsuit is filed. 

A lawyer can help a whistleblower understand what becomes public and what can remain private with a whistleblower case. Frequently, an experienced whistleblower lawyer can provide guidance on what a whistleblower can do to protect privacy.   


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