Whistleblowing is when a person, usually an employee who “blows the whistle,” or reports on their employer’s illegal or fraudulent actions to an outside agency of the government.
Employers are not allowed to retaliate against employees who act as whistleblowers by firing them, denying them benefits or acting in other ways that adversely affect their employment status. Whistleblowers are protected by both state and federal laws
Which Federal Laws Protect Whistleblowers?
Federal law regarding whistleblowers is expressed in a range of statutes and regulations. Some of the major laws relating to whistleblowers are as follows:
- The Sarbanes-Oxley Act of 2002: This act provides protection for whistleblowers in publicly-traded corporations. It also requires corporate employers to establish procedures for employees who wish to make anonymous complaints. Additionally, the act makes it a criminal offense, punishable by fines or up to 10 years in prison, for employers to retaliate against whistleblowers;
- The False Claims Act: This law allows people not associated with the government to file a claim of fraud against the federal government or its agencies. Some of the provisions of this law are:
- It prohibits people from knowingly presenting to the government a false claim regarding payments or other financial issues;
- It allows the citizen who is filing the claim to collect a portion of the awards from successful claims (usually 15-25%). This is known as “qui tam,” where the citizen is allowed to file “on behalf” of the government;
- The Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (the “No-FEAR” Act): This act applies only to employees of federal agencies. It raises work standards for federal agencies and implements more strict whistleblowing mandates, including:
- Federal agencies must notify all employees of their rights under whistleblower laws;
- They must also provide procedures for processing complaints;
- The agency employers must provide investigations of complaints regarding equal employment opportunity violations;
- Federal agents who violate whistleblower policies will be subject to discipline;
- The Whistleblower Protection Act: This law was enacted in 1989 and revised in 2002. It also provides protection for whistleblowers who work for the federal government. This act led to the creation of the Office of Special Counsel (OSC), which investigates complaints from federal employees. The law protects federal employees who report a violation of a law, rule, or regulation, gross mismanagement, the gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. The federal Whistleblower Protection Act also protects applicants for federal employment;
- The Military Whistleblower Protection Act: This act allows members of all branches of the military to register complaints with a member of Congress;
- The National Defense Authorization Act of 2013: This act set up a pilot program that makes it illegal for the employee of a federal contractor, subcontractor, grantee, or subgrantee to be fired, demoted, or otherwise adversely affected for making a protected whistleblower disclosure. In 2016, the program was made permanent.
Keep in mind that several states have their own state law versions of the federal False Claims Act.
Which Law Do I Rely on to Report My Employer for Misconduct?
A person has several options, depending on the nature of their employment. If a person works in a corporate setting, they will likely be filing under the provisions of the Sarbanes-Oxley Act (SOX). If the complaint is about the federal government, a person would likely file their claim according to the False Claims Act or the No-FEAR Act.
A member of the military would in all likelihood turn to the Military Whistleblower Protection Act. A federal employee would rely on the Whistleblower Protection Act. Not all acts of whistleblowing are addressed by federal law and a person may well have to rely on state law for protection from retaliation for whistleblowing if the federal government is not involved.
The fact that there are several different federal statutes, and then state laws also, regarding whistleblower protection is what makes it a good idea to consult an experienced employment lawyer. In fact, if a person wants to engage in an act of whistle blowing, they might do well to consult an experienced employment lawyer before they act, rather than waiting until after their employer has retaliated against them for their actions. A lawyer could help a person formulate a proactive plan that might work to avoid retaliatory firing or other actions.
Can I File a Lawsuit Immediately If My Employer Has Retaliated against Me?
In some cases, a whistleblower protection statute requires an employee who has experienced retaliation to notify a supervisor within the company for which the person works. Or, the law might require a person to file a claim with some government agency.
In general, claims for relief under the federal statutes should be filed with the Secretary of Labor. The Secretary of Labor then conducts an investigation. The Secretary issues an order regarding the case. If one of the parties involved is not satisfied with the order, they may appeal it to a federal court.
There are differences depending on the exact statute involved. For example, people employed by defense contractors who engage in whistleblowing activities should file their complaints with the Inspector General rather than the Secretary of Labor. There are other technicalities with respect to where to file a complaint. For example, under the Commercial Motor Vehicle Safety Act and the Dodd-Frank Act, the Secretary’s order becomes the final order in the case unless objections to it are lodged within a specified period of time.
The Occupational Safety and Health Administration (OSHA) has its own Whistleblower Protection Program within the agency. Its purpose is to enforce the whistleblower provisions of more than 20 federal whistleblower statutes that protect employees from retaliation for reporting violations of a long list of laws relating to specific industries as follows:
- Workplace safety and health,
- Commercial motor carriers,
- Consumer products,
- Financial reform,
- Food safety,
- Health insurance reform,
- Motor vehicle safety,
- Public transportation agencies;
- And other industries as well.
Retaliation must be reported to OSHA before the employee is allowed to file a civil lawsuit in a federal court. A case must be filed with OSHA within 180 days after the employee learns of the retaliation.
In the event that an employer does retaliate against a person for being a whistleblower, the person may be able to recover their monetary losses, such as back pay. They may also be reinstated to the position from which they were fired.
The usual route for seeking relief is:
- First, check with the employer to learn whether there are any available remedies within the organization or federal agency. Many employers are now required by law to have reporting procedures, so a person might first make the complaint with the employer;
- If a resolution cannot be reached internally, the first step is for a person to file a claim with a federal agency, possibly the Secretary of Labor;
- If the agency cannot resolve the dispute, only then can the person resort to a civil lawsuit.
It is because of complexities and technicalities such as these that a person would do well to consult an experienced employment attorney. The attorney can determine what steps must be followed and where claims must be submitted first. A person trying to navigate federal law on this issue alone may well lose their rights because they do not file a claim with the right agency or official within the specified period of time.
Do I Need an Employment Lawyer?
An experienced wrongful termination lawyer can give you real help with whistleblowing claims. They can help you prepare the documents required for filing a whistleblower report. Also, in the event that your employer does retaliate against you, it can be helpful if your lawyer is already familiar with your case. Be sure to make detailed notes of the employer misconduct, as well as any incidents of retaliation against you. Write up your notes at the time of the misconduct or retaliation when you can still recall all details accurately.
It might make sense to consult with an experienced employment attorney before doing the whistleblowing. The lawyer may be able to help a person formulate a plan for their action, one that would include communications with the employer should the employer move to retaliate. It could help a person avoid retaliation. For example, if you work for a publicly-traded corporation, a lawyer might remind your employer that an act of retaliation can lead to being charged with a crime that is punishable by time in prison. This could well persuade the employer not to retaliate.
If not, the lawyer will know what procedure must then be followed, whether filing a claim with OSHA or some other agency is necessary or whether a person can proceed directly to a court of law.