A recent survey found that employees who witness misconduct are increasingly willing to report it — an admirable posture when it comes to acting ethically and protecting the best interests of the public.
Whistleblowers, however, often have many additional questions that go beyond starting the process. To help address these concerns, here are answers to some frequently asked questions:
Can I remain anonymous?
Maybe, but it’s often difficult. Different whistleblower laws apply in different situations; certain of them — such as the program created by the Dodd-Frank Act — make it more possible to guard your identity. But anonymity is not guaranteed, and it may be unlikely in many cases. Details in a complaint may make a whistleblower’s identity obvious, even if he or she isn’t named. Sometimes, the filing of public documents after an investigation concludes will state the whistleblower’s identity.
Consulting an attorney before taking whistleblower action offers the best chance of guarding your identity; various strategies include creating a corporate entity to file the complaint or requesting that a case be sealed. The Anti-Fraud Coalition provides excellent resources for individuals considering becoming whistleblowers. Keller Grover is a proud supporter of TAF and Kate Scanlan and Jeff Keller are both active members.
Will becoming a whistleblower cost me my job/career?
This is a complex question. Whistleblowers often continue working for a company, but they sometimes face negative consequences if their identities become known. Those consequences may vary, such as termination, denied promotions, a forced transfer, pay cuts, ostracism or intimidation, poor performance reviews, or other actions.
However, retaliation is against the law. The California Labor Code, which would govern California employees, states that employers who retaliate against a whistleblower must reinstate the employee’s employment and work benefits, pay lost wages, and take any other necessary steps to comply with the law. Administrative proceedings or legal action may help whistleblowers achieve remedies. Federal laws that apply to employees in all states also protect against retaliation. An experienced whistleblower attorney, like those at Keller Grover, can help a potential whistleblower evaluate which laws may apply to protect them.
Can I be sued for blowing the whistle on a fraud on the government?
This is possible but uncommon. And it can be viewed as retaliation, which would result in more legal trouble for an employer. As TAF notes, courts often reject counterclaims against whistleblowers, reasoning that whistleblower laws reflect a broad public policy that favors private citizens reporting suspected fraud against the government.
However, if there are lawsuits related to sharing a company’s confidential information with outsiders, they typically fall under the categories of breach of contract or breach of fiduciary duty, TAF says. That’s because employment or separation agreements may include a confidentiality clause. However, companies that sue a whistleblower often have a hard time proving that the lawsuit isn’t some form of retaliation.
Certain whistleblower laws have stronger protections against counterclaims; getting legal advice before taking whistleblower action can be incredibly helpful. In addition, would-be whistleblowers can protect themselves by taking only documents they have permission to access, not taking privileged documents (such as communication with lawyers), and taking only documents that are reasonably necessary to support the whistleblowing claim.
What if I have an employment claim or signed a severance agreement?
These types of agreements may include phrases such as relinquishing “any and all” claims against an employer, but there can be many variables that affect how these would be interpreted under the law. Under some whistleblower laws, employers can’t use these agreements to undermine efforts to expose a fraud. In other cases, it matters whether an agreement was signed before or after a whistleblower steps forward to provide information. Again, an experienced whistleblower attorney can help navigate the nuances. Read more here.
What if my report would include protected information, such as health information covered by HIPAA?
It’s always best to exercise caution when handling information you know is subject to privacy or confidentiality requirements. We touch on some of these considerations in the second question. However, there can be exceptions. Regarding HIPAA privacy rules, a whistleblower is allowed to share protected health information with a health oversight agency, public health authority, or retained attorney (read more from TAF). Any prospective whistleblower who plans to provide such HIPAA protected information to the government as evidence of a fraud just needs to be diligent to secure the information so that the information does not fall into the wrong hands. Another way to share information is by first redacting information that would allow a patient to be identified. An experienced whistleblower attorney would be able to guide a whistleblower through any privacy rules.
Could I get a reward?
Yes. Many of the best-known whistleblower laws, such as the False Claims Act and Dodd-Frank, include incentives for voluntary whistleblowers who provide original, timely and credible information. These awards are set by statute and can be as much as 30 percent of recoveries. For example, under the Dodd-Frank Act, in August alone, the Securities and Exchange Commission announced more than $120 million in awards to eight whistleblowers. However, situations vary; consult an experienced whistleblower lawyer to find out the specifics and potential for yours.
Keller Grover provides confidential, free consultations to advise potential whistleblowers. We can guide them in determining the best path forward from the very beginning, helping minimize the impact of reporting, protect their rights, and achieve the best possible outcome for the situation. If you need advice, contact us today.