The courageous whistleblowers who stand up against wrongdoing at work are doing the public a valuable service — but the companies whose actions are being reported may not see it that way.

Under the various whistleblower laws, retaliation typically is prohibited and could result in more sanctions for the reported company. But what exactly is retaliation?

In a nutshell, retaliation encompasses any adverse action against the whistleblower for engaging in protected activity (see more from the U.S. Department of Labor). That’s a broad definition, though. Retaliation can take many forms, and employers may try to mask it.

Keller Grover has long protected whistleblowers, both through advising them before, during, and after making a whistleblower report, and by taking steps to protect them if they face retaliation. Many whistleblower laws allow for anonymous reports, but identities may become known as facts emerge. We believe whistleblowers deserve strong advocates and want to equip them with knowledge to protect themselves. Here are some forms retaliation can take:

• Termination may seem like the most obvious form of retaliation, but sometimes companies argue that the firing wasn’t a result of whistleblower activity. In a case that’s currently before the U.S. Supreme Court, a former research strategist for UBS Securities is arguing that he was fired for refusing to publish biased reports, while UBS argues that the firing was purely for financial reasons. We continue to watch this case. In a separate case, pharmaceutical giant Eli Lilly and Co. recently settled a lawsuit in which the worker claimed she was terminated after repeatedly pointing out issues related to the production of several biologic drugs. The company said the settlement was not an admission of wrongdoing.
• Companies sometimes use demotions and transfers to retaliate against whistleblowers. An executive with Westinghouse Electric, whose parent company is Toshiba, said he was demoted and transferred to Canada after he identified problems with a nuclear project in South Carolina. He reportedly filed whistleblower complaints to both the U.S. Nuclear Regulatory Commission and the Labor Department.
• Part of complaints against Apple in recent years have been allegations of retaliatory investigations, according to an article in The New York Times. The threat of being investigated at work for speaking out about concerns allegedly scared some employees into keeping quiet. This more subtle approach also accompanied allegations such as terminations of other employees.
• Retaliation doesn’t always appear as concrete changes to a whistleblower’s job. Sometimes, an employee is allowed to continue at work, but he or she faces harassment, intimidation, or threats of some sort. Last year, for example, whistleblower employees of the federal Bureau of Prisons said they were being bullied for reporting abuse of inmates at a women’s prison.
• Sometimes, employers try to silence workers by getting them to sign non-disclosure agreements, withholding pay unless they agree to keep quiet, or trying to make it hard for them to seek other jobs. In other instances, they sue employees for disclosing confidential company information — but these suits are uncommon because they can be viewed as retaliation.

What you can do

Remember: Retaliation against whistleblowers violates the law. Seeking advice early on from an experienced whistleblower attorney, like those at Keller Grover, allows you to be proactive about protections, get a good handle on your case, and take prudent actions.

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. The attorneys at Keller Grover can help potential whistleblowers evaluate which laws apply to protect them.

Whistleblowers who have faced retaliation also have been able to file lawsuits to recoup losses and damages.

If you are considering whistleblower action or are facing retaliation at work, contact Keller Grover for a free and confidential consultation. With our proven track record of advocating for workers, we can help you understand all your options, protections, and best next steps. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.

 

Few people expect to become whistleblowers — until they’re confronted with illegal actions in their workplace and realize they need to speak up.

How do you approach something as significant as reporting wrongdoing by your employer? At Keller Grover, we specialize in helping whistleblowers. While we understand your questions and concerns might seem overwhelming, we’re here to help you navigate the process.

Here are 5 things to consider if you’re faced with the question of whether to become a whistleblower:

1. Get a clear picture: Particularly if you’re new on the job, pay attention and make sure you’re understanding correctly. What is happening, and how do you know?
2. Document what’s happening: Write down — privately, on your own time, and on your own computer — the basics of who, what, when, where, why, and how. Is there a clear law or regulation that you know is being violated? We recommend keeping your concerns private initially; documenting concerns on your own time and not on a work computer also helps prevent disputes about your use of paid work time. But notes help keep your recollections clear and demonstrate the extent of the wrongdoing so you can best determine next steps.
3. Confide in someone: After compiling notes, this is a great point to seek legal counsel, particularly if the idea of understanding the relevant laws seems complex. Some choose to approach a manager or boss first, but it can be difficult to predict how those interactions will go, making it prudent to first get advice from an experienced whistleblower attorney. Keller Grover offers free, confidential consultations — we can advise you about next steps, considering your employment agreement, current whistleblower laws, and the specifics of the situation. Sometimes, there are appropriate channels within a company that can minimize the risks to you. Other times, it’s best to make the appropriate reports directly to the government while maintaining your confidentiality. 
4. Understand your rights, as well as potential risks and rewards for yourself, your career, and your family. Becoming a whistleblower can affect your job, reputation, and more, so it’s vital to understand your rights. There’s no global whistleblower overseer; rather, a patchwork of state and federal laws govern various segments of whistleblower activity. Some of the more well-known laws include the False Claims Act (intended to prevent companies from defrauding the government), the Sarbanes-Oxley Act and the Dodd-Frank Act (broadly seeking to keep financial institutions/publicly traded companies stable, forthcoming and prudent), and IRS whistleblower law (addressing tax noncompliance). Other laws establishing whistleblower programs include the National Traffic and Motor Vehicle Safety Act (provides incentives for automobile industry whistleblowers who report safety hazards) and the Anti-Money Laundering Whistleblower Improvement Act (seeks information about activities that violate the Bank Secrecy Act). California has additional whistleblower laws. Also, whistleblower laws typically prevent retaliation — such as being fired, demoted, mistreated, or denied a promotion because of suspected whistleblower activity — and can offer significant rewards. Under certain laws, those who provide new, vital whistleblower information that results in a financial settlement may be eligible to receive up to 30 percent of the amount recovered.
5. Come up with a plan: Once you have a clear picture of your situation, you can act prudently and strategically. Perhaps that involves making a report to your employer; perhaps you work with an attorney to go straight to the appropriate government agency. An attorney can make sure you meet appropriate deadlines, don’t illegally disclose confidential information, present your case effectively, and handle your employer relationships appropriately. With an experienced advocate by your side, you can adjust your strategy as circumstances evolve.

Whistleblowers deserve the best advocates. Keller Grover provides confidential, free consultations to advise those who have observed suspected wrongdoing. 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.

The devastating wildfires in Maui have called attention to a crucial gap in current whistleblower law.

The fires have claimed at least 115 lives, becoming the deadliest U.S. wildfire in more than a century. While the analysis is ongoing, investigators are evaluating the role of downed power lines and decisions by the state’s main power company, Hawaiian Electric.

A recent opinion piece in The Wall Street Journal said that after Maui — as well as California’s 2018 Camp Fire, the deadliest and most destructive wildfire in state history — the nation must examine whistleblower protections for electric grid workers. Such protections would guard whistleblowers from retaliation by their employers.

“Is it possible that there are employees of Hawaiian Electric — which serves 95 percent of the state’s electric customers — who may have recently identified risks but didn’t speak out of fear of losing their jobs?” wrote Tommy Waller, CEO of the nonprofit, nonpartisan Center for Security Policy.

Federal laws protect whistleblowers in industries such as nuclear, transportation, finance, and pipelines, as well as in food safety, tax fraud, and occupational health, “yet there are no parallel federal protections for employees who work on the infrastructure on which all modern life depends: the electric grid,” Waller wrote.

That means electric company employees who point out security or regulatory concerns can be fired.

And, in the case of the California fire, a veteran PG&E employee claimed he was fired after alerting the company about wildfire risks of certain equipment more than a year before the Camp Fire.

PG&E eventually pleaded guilty to 84 counts of involuntary manslaughter in connection with the fire, as well as one count of unlawfully starting a fire.

The COVID pandemic disrupted a March 2020 effort in the U.S. Senate to protect electric-grid whistleblowers; Waller called for renewed action in this area.

“The absence of such safeguards puts our nation at risk of additional wildfires and other dangerous consequences associated with electrified infrastructure, such as blackouts,” he wrote.

Indeed, the significance of an update to federal law here promises to be increasingly relevant. Steven Hawks, CAL FIRE chief, said in an analysis of the Camp Fire that “there’s no reason to believe that fire activity and severity is going to lessen anytime soon.” He added that fires are burning quickly, creating a greater risk of people getting trapped.

It’s particularly troublesome, Waller noted, to consider that perhaps these tragedies could have been prevented had employees been empowered to speak out.

Whistleblowers provide an invaluable — even lifesaving — service to our nation, and we believe they deserve the best advocates. Keller Grover provides confidential, free consultations to advise those who have observed suspected wrongdoing. 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.

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.

Cybercrime has surged, particularly since the pandemic, targeting the sensitive information of consumers, businesses and governments. The FBI’s 2022 cybercrime report tallied nearly 801,000 complaints, adding up to nearly $10.3 billion in losses. While the number of complaints has held fairly steady since 2020, the breaches have gotten much more lucrative for bad actors: reported losses were $4.2 billion in 2020 and $6.9 billion in 2021. 

These figures show why companies that aren’t enacting strict cybersecurity measures are at risk of costly attacks. The federal government has enacted a two-pronged strategy to push more companies to take these threats seriously, and face liability and fines for failing to do so.

Recognizing that these breaches are material to investors’ evaluations of whether to buy or sell a company stock, the Securities and Exchange Commission adopted new disclosure rules about cybersecurity breaches. If there’s a “material” breach, a publicly traded company must file the appropriate form within four business days. Alongside that requirement are various other rules about regularly disclosing risk management strategies and other cybersecurity measures. 

“Whether a company loses a factory in a fire — or millions of files in a cybersecurity incident — it may be material to investors,” SEC Chairman Gary Gensler said in the announcement. “Currently, many public companies provide cybersecurity disclosure to investors. I think companies and investors alike, however, would benefit if this disclosure were made in a more consistent, comparable, and decision-useful way. Through helping to ensure that companies disclose material cybersecurity information, today’s rules will benefit investors, companies, and the markets connecting them.”

There is one exception to public reporting: If the U.S. Attorney General considers immediate disclosure to pose a substantial risk to national security or public safety and informs the SEC in writing.

Failure to make a disclosure under these new rules will be a violation of the securities laws. The SEC Whistleblower Office is authorized by Congress to provide monetary awards to eligible whistleblowers who come forward with information about violations of the securities laws that lead to an enforcement action in which over $1 million in sanctions is ordered. The range for awards is between 10% and 30% of the money collected.

In addition to the SEC rules, the federal government has cybersecurity requirements for all its contractors and grantees; the Department of Justice started the Civil Cyber-Fraud Initiative in October 2021 to enforce those requirements under the False Claims Act. Whistleblowers can file qui tam lawsuits if they have information that government contractors or grantees aren’t meeting those requirements, and if successful, receive a percentage of the recovered funds.

Today, government vendors and publicly traded companies (and indeed, some companies fall into both categories) must demonstrate heightened compliance with cybersecurity requirements. Potential violations can include:

• Companies contracting with the federal government that knowingly lack adequate cybersecurity measures.
• Publicly traded companies that don’t notify the SEC/investors of a material cybersecurity breach within four business days (apart from recognized exceptions).
• Government contractors and grant recipients that don’t make timely reports of a cybersecurity breach.

While the incidence of these breaches may be on the rise, whistleblowers are going to play a critical role in reporting to the government when companies fail to comply with these tighter requirements. For those who want to report such wrongdoing, it’s critical to engage a whistleblower attorney early in the process. With more than 30 years of combined experience litigating fraud and employment cases — and billions in recoveries for its clients — Keller Grover is uniquely positioned to represent whistleblowers. 

If you want to report cybersecurity fraud in your organization, we are here to help. For advice about how to handle suspected fraud, contact Keller Grover for a free and confidential consultation.