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Doing the Right Thing: Everything You Need to Know About Being a Whistleblower

  • By:Hershey Law

As a general rule, most employees do not take on a job with the expectation that they will have to be a whistleblower. When you work for a business, there is a duty of service that you plan to provide your employer in exchange for a paycheck and benefits as laid out upon the terms or employment.

This service goes hand in hand with the understanding that your employer will be doing their part to provide you with a safe and secure work environment in which you can do your job to the best of your ability. Your moral and ethical integrity should not have to be called into question while you are working.

Unfortunately, sometimes there are lines that your employers or fellow employees cross at the workplace, and somehow you become aware of them. These lines may include illegal actions, abuse, wrongdoings, or something that causes risk to the public good.

When this happens, you have an obligation to disclose that information to the proper authorities. Even knowing about that obligation, many people are afraid to report their knowledge because they worry about the repercussions of what they feel amounts to tattling.

It’s not tattling, however. In fact, it’s called “whistleblowing,” and it is so important and so heavily protected that there are entire branches of government devoted to helping you protect your rights should you find yourself in this position.

What Exactly is a Whistleblower, Anyway?

The general definition of a whistleblower, per the United States Department of Labor Occupational Safety and Health Administration (OSHA, for short), is someone who learns of an illegal or unethical action going on in their place of employment and, instead of looking the other way or participating in the activity, they report it to the proper authorities.

Whistleblowers are extremely important in the eyes of the government. They help to reduce corruption and abusive authority, ensure that those involved in the wrongdoing are held accountable, and help to prevent waste, fraud, and illegal use of resources. In some cases, they can even be saving lives.

Because of the importance of doing the right thing when someone sees these illegal or unethical lines being crossed, it is ultimately extra critical that they are provided protection from retribution once their accusations have been brought to light.

Whistleblowers can be anyone from an employee or a contractor to a client. Once you know about an illegal or unethical act that is going on in a business, either because you have witnessed it or someone has reported it to you, you have a responsibility to report that act.

The Dangers of Whistleblowing

Those in the position of whistleblowing have often feared stepping forward because of the very real threat of retaliation. Retaliation can come in many forms, such as:

  • termination or laying off of employment,
  • demotions,
  • denial of overtime or benefits,
  • intimidation or harassment with the intent of making the whistleblower recant a testimony or quit their position,
  • threats,
  • reduction in pay or hours,
  • and other adverse actions.

To protect whistleblowers from these retaliatory acts, laws have been created through OSHA and other branches of the government, like the Securities and Exchange Commission, or SEC. As a whole, whistleblowers are protected from adverse actions, but each industry may have varying laws.

For instance, if you work for a New York Stock Exchange-traded company, you would be protected by the Sarbanes Oxley Act of 2002. Those who work in the food industry are protected by the Food Safety Modernization Act (FSMA).

These protections fall under both federal and state statutes, with varying requirements and statutes of limitation for each.

If you are filing a lawsuit against your employee as a whistleblower, it is important for your attorney to know which whistleblower protection acts you fall under to properly present your case and protect your rights.

Types of Whistleblowing

Although any reporting of wrongdoing in a business qualifies as whistleblowing, there are actually three main categories each report can fall into.

The majority of whistleblowing cases fall into either the category of “internal whistleblowing,” or when the illegal or unethical act is reported to another person in the organization, or of “external whistleblowing,” when the act is reported to the proper outside authorities or the media.

There are also government whistleblowers. These can be private-sector employees who have knowledge of misdeeds in the government and report them. They may also be from a private company who has internal knowledge of wrongdoing in the government and reports those activities.

However, individuals who work in the government have special protections under the Whistleblower Protection Act, so if you are reporting government misdeeds, your attorney will be working under more stringent laws to present your case.

What Can You Expect in a Whistleblower Case?

Each case is different, and yours will depend on which category it falls under, but there are some common components of almost all of these types of cases.

In the majority of whistleblower cases, there is a specific statutory or common law that determines who is covered – in other words, who the plaintiff can be. Usually this is an employee, but there are other individuals that can be covered.

The defendant also must fall under these statutory or common laws and is usually an employer but can be another person that is covered.

The plaintiff must have engaged in a protected whistleblower activity and the defendant must have known that the plaintiff engaged in this activity. After this knowledge, the defendant retaliated against the employee due at least in part to the protected activity.

The next step in the case is usually that the plaintiff was discriminated against in the form of compensation, privileges, or other employment terms, or somehow suffered a wrong that was covered under state or federal law.

Evidence must be able to show that the plaintiff would not have been subject to that discrimination had they not acted as a whistleblower against the defendant.

Discriminatory actions generally fall into one or more categories. These can include, but are not limited to, the following circumstances that are used to show retaliation and discrimination:

  • high-performance ratings prior to the whistleblowing activity, followed by lower ratings or reported problems after,
  • termination not following designated procedures,
  • disparaging treatment of the employee after their protected act,
  • accusations that the employee was disloyal for making the report,
  • threats or attempts to intimidate the employee or other employees to keep them from making further allegations, and
  • disciplinary actions after the report was made.

What is the Timeline of a Typical Whistleblower Case?

Each whistleblower complaint undergoes a series of steps, or phases, once a case is determined to have merit and a lawsuit is filed by an attorney on the behalf of the plaintiff. At this time, the government will conduct an investigation. If you have hired an attorney to present your case, he or she will likely be working with the government at this time to assess their determination of the case, review their data, and then determine how to proceed.

To investigate, the government will usually issue a “civil investigatory demand,” which allows them to obtain documents pertaining to the case and interview current and past employees. The government may also interview the defendant.

In the second phase, the government will make a final determination as to whether it will pursue or decline the case. Should it move forward, the defendant is then served with an official complaint.

Timing in the first and second phase can depend on a multitude of factors, like how complex the case is, how many defendants there are and if more are uncovered during the investigation, the resources that the government extends to the investigation, and the information received by both the whistleblower and the defendant.

Whistleblower cases can take anywhere from one to two years for a simple case to even as long as ten years for a more complicated claim.

Know Your Rights: Don’t Be a Victim

While you are going through the stressful process of doing the right thing, remember that you are not in the wrong. You are taking the difficult, but morally and ethically correct, step by ensuring that the person or people guilty of the illegal or unethical activity are held accountable for their actions.

With your help, your attorney can ensure that no one else falls victim to the consequences of the activity that you are working to stop.

Because of the importance of your actions, your rights must be protected. Working with attorneys who care, like those of us at Hershey Injury Law, gives you the peace of mind of knowing that you are being guided and taken care of by knowledgeable experts who care about you as a person.

Contact our legal team at Hershey Injury Law today to schedule a free consultation to see how we can help you protect your rights as a whistleblower and stop the workplace wrongdoing from continuing to occur.

Posted in: Employment Law, Whistleblower