The term whistleblowing refers to an employee “blowing the whistle” on their employer’s illegal or unethical behavior. The whistleblower does this by reporting their employer to the appropriate authorities or commission, typically a law enforcement agency. Whistleblowers legally cannot be fired for their actions, and are protected under specific whistleblowing laws. Employers are prohibited from retaliating against them by firing them or by denying them benefits.
The following are some of the more common examples of why whistleblowing occurs:
- The employer is violating public health laws, which leads to illness or death;
- The employer is violating workplace safety laws;
- The employer is violating hiring and firing laws;
- The employer is practicing discrimination against a protected class or activity;
- Mismanagement of funds; or
- Abuse of authority.
Although whistleblowers are protected by whistleblowing laws, they may still be fired from their job for other reasons not related to their whistleblowing actions. An example of this would be if the whistleblower also has a history of absences or tardiness. In such a case, their employer may legally terminate their employment without violating any whistleblower laws.
As previously mentioned, there are federal laws in place which protect employees who speak up about an employer who is breaking the law. Whistleblowing employees, as the witnesses to questionable behavior, are afforded immunity against retaliation and termination after reporting their employer to law enforcement.
Thus, if they are terminated solely because of whistleblowing, meaning there was no other valid reason for their termination, they have the right to sue their employer for wrongful termination. If the action reported by the employee was not actually illegal, but the employee reasonably believed that it was, they are still protected against any employer retaliation. This includes termination.
The False Claims Act (“FCA”) protects any employees who have assisted in an investigation of claims against a federal agency. The government can conduct an investigation and sue an employer if those claims are found to be falsified, while the employees who assisted in the investigation are protected against termination. If an employee was terminated, they must show the following in order to prove retaliatory termination:
- The employee’s actions were in fact protected under the False Claims Act;
- The employer was aware that the employee was assisting the government’s investigation; and
- The termination of the employee was in retaliation for the employee’s participation in protected activities.
The False Claims Act also provides whistleblowers a percentage of what the government wins in its lawsuit against the violating employer. This damage award for whistleblowers was initially created to help stop fraud in Medicare and other government programs. Additionally, the damage award provided an incentive to potential whistleblowers who might experience retaliation from their employer.
Whistleblowers who were wrongfully terminated for reporting their employer’s violations may be entitled to:
- Reinstatement to their job, potentially with seniority;
- Back pay, potentially with interest;
- Attorney’s fees and costs; and
- Special damages.
The amount that the whistleblower may be awarded depends on the case. They may be awarded anywhere between ten to thirty percent of what the government collects from the lawsuit. For example, if the lawsuit involved the IRS, and the penalties exceeded $2 million, the whistleblower could receive fifteen to thirty percent of those penalties. Additionally, whatever legal fees the whistleblower incurs will be paid by the government.
If the case settles, the whistleblower will typically receive a smaller sum. However, settlement typically means that the whistleblower will receive compensation much faster than if they waited years for their case to go to trial.
In addition to the False Claims Act, there are some other federal laws that protect whistleblowers. The Sarbanes-Oxley Act of 2002 (“SOX”) provides protection for whistleblowers in publicly traded reporting corporations. Additionally, SOX requires corporate employers to provide procedures for employees to make anonymous complaints, and employer retaliation is a criminal offense punishable by fines or up to ten years imprisonment.
The Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (“NO-FEAR” Act) applies specifically and only to employees of federal agencies. The Act raises work standards for federal agencies and sets more strict whistleblowing mandates. An example of such mandates is that federal agencies are required to notify all employees of their rights under whistleblowing laws. The Whistleblower Protection Act also provides protection for federal government whistleblowers, while the Military Whistleblower Protection Act allows members of the armed forces to complain to a member of Congress.
In order to prove that you were mistreated or retaliated against for whistleblowing, you should be able to answer “yes” to the following questions:
- After reporting your employer, were you the recipient of any negative employment actions?
- Is the reported information indicative of a law violation? To whom and when did you report it?
- Was management aware of the whistleblowing event?
- Did your reporting of the event contribute to the personal attack?
Whistleblower claims should be reported immediately, and to an attorney or the appropriate government official or agency. Should the claim become public knowledge, it would likely be denied and no protections would be offered to the whistleblower.
Although there are numerous whistleblower protection laws, most do not allow the employee to immediately bring a lawsuit for wrongful termination. The complaint is typically handled on an administrative level first, then filed with OSHA or the EEOC. If the matter is not resolved an administrative judge may be appointed.
Lastly, state laws may have specific requirements. For instance, California whistleblower laws may have special provisions that apply only in that state.
It could be difficult to prove that you were wrongfully terminated due to your whistleblowing. Therefore, if you believe that you were wrongfully terminated due to whistleblowing, you should immediately consult with a well qualified and knowledgeable employment law attorney.
An experienced employment law attorney will be able to advise you of your best course of legal action. Additionally, the attorney can help you build your case, assert your legal rights, and represent you in court as needed.