Whistleblowing refers to a person, usually an employee, that “blows the whistle” or reports their employer’s illegal or fraudulent actions to an outside agency or the government. Whistleblowers are protected by a wide array of state and federal laws. Employers are not allowed to retaliate against employees who act as whistleblowers by firing them or denying them benefits.
Which Federal Laws Protect Whistleblowers?
Federal law regarding whistleblowers has been described as a “patchwork of laws” because the various regulations and statutes are scattered over a variety of employment law areas. Here are some of the major laws that govern and protect whistleblowers:
The Sarbanes-Oxley Act of 2002 (also called “SOX”): This act provides protection for whistleblowers in a publicly-traded reporting corporation. It also requires corporate employers to provide procedures for employees making anonymous complaints. Additionally, the act makes it a criminal offense punishable by fines or up to 10 years imprisonment for employers to retaliate against whistleblowers.
The False Claims Act: This law allows persons who are not associated with the government to file a claim of fraud against the Federal government or its agencies. Some of the features of this law are:
Prohibits people from knowingly presenting to the government a false claim regarding payments or other financial issues
Allows the citizen who is filing the claim to collect a portion of the awards from proceedings (usually 15-25%). This is known as “qui tam,” where the citizen is allowed to file “on behalf” of the government
Keep in mind that several states have their own versions of the False Claims Act.
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
Whistleblower Protection Act: This law was implemented 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. However, the act was challenged in a recent Supreme Court Case and is currently undergoing restructuring.
The Military Whistleblower Protection Act: This act allows members of the armed forces to complain to a member of Congress.
Which Law Do I Rely on to Report My Employer for Misconduct?
You have several options, depending on the nature of the employment. If you are in a corporate setting, you will likely be filing under the provisions of the Sarbanes-Oxley Act (SOX). If the complaint is about the federal government, you will likely be filing your claim according to the False Claims Act or the No-FEAR Act.
Can I File a Lawsuit Immediately If My Employer Has Retaliated against Me?
In general, no. Be aware that you will usually be required to submit your claim to the Occupational Safety and Health Administration (OSHA) before you are allowed to file a civil lawsuit in a federal court. OSHA is a federal agency that hears cases regarding discrimination and other employer misconduct. Cases must be formally filed with OSHA 180 days after the employee learns of the retaliation.
In the event that an employer does retaliate against you for being a whistleblower, you may be able to recover for lost expenses such as back pay and may be reinstated.
The usual route for relief is:
First, check with the employer if there are any available remedies. They are now required by law to have reporting procedures, so you must first make the complaint with the employer.
If an agreement cannot be reached internally, your claim must be filed with OSHA.
If OSHA cannot resolve the dispute, only then can the person resort to a civil lawsuit.
Do I Need an Employment Lawyer?
An employment lawyer can be a great help in whistleblowing claims. They can help you prepare the necessary documents for filing a report. Also, in the event that your employer does retaliate against you, it is good if the lawyer is already familiar with your case. Be sure to make detailed accounts of the employer misconduct, as well as any incidents of retaliation against you.
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