Now more than ever, whistleblowers play a vital role in helping society sort out the turbulence of the past few years.

They’ve alleged lax security at Twitter. They’re helping the U.S. government ferret out the multibillion-dollar fraud on pandemic relief funds. They’ve offered explosive testimony for the Jan. 6 panel. And that’s just for starters. Keller Grover comes alongside whistleblowers, addressing fraud related to  Medicare, COVID-19 and more.

While many of these whistleblowers have been praised for their bravery, they need much more. Whistleblower programs have proven invaluable in uncovering wrongdoing, but adequate protections and financial rewards must be an integral piece of the puzzle for them to succeed. The government’s most successful whistleblower programs have elements of this, typically offering mandatory rewards of 10 percent to 30 percent of recovered funds. But given the surge in fraud, legislation to protect all whistleblowers sends an important message.

While there are multiple legislative whistleblower initiatives in various phases — addressing pandemic fraud, FTC whistleblowers, SEC and public company whistleblower initiatives, improvements to the Dodd-Frank Act, and various other topics — a bill that just passed the House to protect government employee whistleblowers holds a lot of promise.

On Sept. 15, the U.S. House of Representatives passed the Whistleblower Protection Improvement Act of 2021, HR 2988. Now, the bill’s fate lies in the hands of the U.S. Senate. 

“When Americans alert the nation to waste, fraud, and abuse by the federal government, they take immense personal, professional, and emotional risks,” U.S. Rep. Nancy Mace said in a written statement. “The passage of the bipartisan Whistleblower Protection Improvement Act will help ensure these brave citizens who help root out corruption are protected from possible intimidation and retaliation.”

Among the expanded protections in the bill:

• Clarifying that federal officials can’t interfere with a federal employee’s ability to share information with Congress.
• Limiting public disclosure of whistleblowers’ identities.
• Preventing agencies from launching retaliatory investigations against whistleblowers.
• Prohibiting retaliation against employees who tell supervisors about law violations, gross mismanagement or waste, abuse of authority, or specific and substantial dangers to public health or safety.
• Clarifying that successful whistleblowers should recover attorney fees and relief to make them whole, including any applicable promotions or other perks in the workplace.
• Ensuring access to jury trials to seek justice if administrative rulings drag out.
• Offering the potential for temporary relief during ongoing whistleblower actions.

The bill, which builds upon whistleblower protections passed in 1989 and 2012, has support from more than 100 organizations plus some bipartisan backing, despite the polarized political climate. We hope the Senate will act quickly. Legislation to protect any whistleblower protects all whistleblowers. 

Keller Grover believes whistleblowers are vital players in meaningful, positive change, and we provide confidential, free consultations to advise those who have observed suspected wrongdoing. We can advise you about the best path forward from the very beginning, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation. Our deep experience litigating both fraud and employment law makes us uniquely skilled to represent whistleblowers.

We’ve written about the government’s growing whistleblower initiatives before; they span many categories, including health care, cybersecurity, money laundering, and vehicle safety. But this latest initiative at the very least underscores the value of whistleblowers, showing their aid can prove valuable far beyond traditional arenas.

The Wildlife Conservation and Anti-Trafficking Act, a bipartisan measure led by Rep. John Garamendi (D-California) and the late Rep. Dan Young (R-Alaska), with 85 co-sponsors, was reintroduced in November. It has not moved beyond committee, but the measure has come up repeatedly since 2018. Congress reconvenes Sept. 6.

As with many of these crimes, the big motivator is money. Many people don’t realize just how lucrative wildlife crime can be — and just how much financial harm it can cause to legitimate, law-abiding businesses. 

The illegal timber industry is worth somewhere between $51 billion and $152 billion annually, illicit fishing is in the billions or tens of billions of dollars, and the trafficking of wildlife and wildlife products is valued at tens of billions of dollars, according to the U.S. Agency for International Development (USAID).

But beyond that, these unregulated actions can cause devastating ripple effects to the environment and to species, and protection laws are hard to enforce.

Keep in mind, decades-old laws do provide the potential for payouts to wildlife crime whistleblowers, but these payouts are discretionary and rarely awarded. The most effective whistleblower programs provide mandatory, meaningful payouts, and they offer protections.

The recent successes of other whistleblower programs with mandatory payouts have created some momentum. The proposed act would set whistleblower payouts between 10 percent and 30 percent of all recoveries, provided they total at least $100,000, with the final amount dependent upon the significance of the information, the helpfulness of the whistleblower, and the strategic significance of the situation to enforcement activities. The rest of the money would be redirected to wildlife conservation efforts.

While this furthers an interesting conversation, the program remains aspirational. In the meantime, many other whistleblower programs already in existence — such as those mentioned above — have succeeded in hampering crime by offering consistent awards and protections. 

Keller Grover believes whistleblowers are vital players in meaningful, positive change, and we provide confidential, free consultations to advise those who have observed suspected wrongdoing. We can help you determine the best path forward from the very beginning, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation. Our deep experience litigating both fraud and employment law makes us uniquely skilled to represent whistleblowers.

It’s not easy being a whistleblower. 

Reporting wrongdoing in the workplace can result in repercussions for workers. In the workplace whistleblowers can experience occupational blowback, such as being fired, suspended, or demoted. Additionally, some may experience social stigma or face challenges to their emotional and physical wellbeing.

Long before deciding to speak out about a fraud, it’s crucial for potential whistleblowers to fully understand their options for reporting wrongdoing, how to navigate the reporting process and how to best protect themselves from harm. 

Would-be whistleblowers should take the time to become familiar with anti-retaliation provisions of the applicable state and federal whistleblower laws prior to taking any action to report fraud. These provisions provide whistleblowers with protection if their employers take action in response to their reporting.

One of the most significant federal laws that gives whistleblowers an avenue to report fraud on the government is the False Claims Act. The law incentivizes whistleblowers to report fraud against the U.S. government, such as overbilling Medicare for unnecessary services or billing the U.S. government for services not rendered. 

The False Claims Act’s anti-retaliation provision protects employees, contractors and agents of a company.

Specifically, they’re protected if they are discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of their employment because of lawful acts in furtherance of the False Claims Act or other efforts to stop one or more violations of the Act. 

The FCA states that such individuals are entitled to “all relief necessary” to make them whole. That relief can include reinstatement with the same seniority status they would have had but for the discrimination, back pay, interest on back pay and compensation for any special damages sustained, including litigation costs and reasonable attorneys’ fees.

Currently, legislation is pending in the U.S. Senate that would provide further clarity on the scope of the FCA’s anti-retaliation provisions. Part of the False Claims Amendments Act of 2021 (S.2428) clarifies that the law’s anti-retaliation provisions prohibit retaliation against a whistleblower occurring post-employment. 

The bill, which has garnered bipartisan support, was introduced to the Senate in July 2021. The U.S. Senate Judiciary Committee passed the bill out of committee in October, advancing it to the Senate floor, where it has remained since. 

In addition to the False Claims Act, California has its own laws protecting workers against whistleblower retaliation. 

California Labor Code Section 1102.5, for example, prohibits employers from retaliating against an employee who is a whistleblower. The law also prohibits an employer from retaliating against an employee for exercising their rights as a whistleblower in any former employment. 

Under this law, a whistleblower may be entitled to relief including reinstatement of their employment and work benefits and lost wages, and employers may be required to take other steps to comply with the law.

If you’re considering blowing the whistle on a fraud, it’s important to fully consider all the implications of becoming a whistleblower. Additionally, you may need to take certain steps to protect yourself and your livelihood. 

At Keller Grover, we strongly encourage would-be whistleblowers to talk to a whistleblower attorney before coming forward. Whistleblower attorneys are equipped to help minimize the impact of reporting, ensure whistleblowers’ rights are protected and help them get the best outcome possible in their unique situation.

Keller Grover’s attorneys have deep experience litigating both fraud and employment law matters and are uniquely skilled to represent whistleblowers. 

Contact us now for a free and confidential consultation.