By Tom M. Cramer, J.D.
Whistleblowers are people who expose unethical or illegal wrongdoing within companies by reporting it internally to superiors or externally to the media or government authorities. Generally, the wrongdoing involves the federal government.
Whistleblowing is often a tough choice for an employee. He or she is usually grateful for having a job. Why rock the boat? Doesn’t the company know what’s going on within its walls? Why am I supposed to be the one who tells management what I saw, read or overheard?
Oh, and if it were a question of overhearing something, will management think that I was eavesdropping? Am I just creating a problem for myself by speaking up?
These are just a few of the questions that go through an employee’s head when considering whether to “blow the whistle” on something or someone at work. What if there’s a logical explanation for the issue and it’s more like making a mountain out of a molehill?
But if there’s a nagging sense that something is really wrong, chances are there may be something amiss. The best way to determine if that’s the case is to share concerns with the appropriate personnel. Unfortunately, that can also potentially create an issue because your supervisor might be one of the people you think is involved in whatever is wrong. You just want the situation to go away, but it won’t.
Living with a secret is often not exciting. It is a burden. And when the secret may affect your livelihood, it can be very stressful. What can you do?
One logical step to take is to seek out legal counsel, even before you speak to someone at work. By doing this, you will be sharing the secret with someone who will not retaliate. That is one of the main concerns that an employee can have with blowing the whistle at work. If, in fact, a supervisor is somehow involved in whatever is wrong, the fear of being retaliated against does exist and it has happened.
Reporting wrongdoing to an outside source, such as a legal counselor, can avoid the continuing fear that may be permeating everything an employee does at work. It is not a panacea, but it is a positive step and a protective one.
Sometimes employees are even apprehensive about doing this. They are afraid they will be discharged if they inform others outside the organization. They may seek out ways to report an issue anonymously through a hotline. Within several industries, such opportunities are available. But not every whistleblower has such options.
First, it is important to know that if you reveal your concerns to your boss, the boss cannot fire you for whistleblowing. If he or she does retaliate against you, you have legal grounds to begin an action against your employer.
OSHA (the Occupational Safety and Health Administration of the federal government) has whistleblower statutes that protect you from retaliation. An employer cannot retaliate by taking “adverse action” against workers who report injuries, safety concerns, or other protected activity.
In fact, in states with approved state OSHA Plans, employees may file a complaint under the OSH Act with both the state and federal OSHA offices. Under the other federal laws, a complaint must be filed with federal OSHA offices directly. You may file a complaint by calling 1-800-321-OSHA (6742).
So, you are protected legally if you go to your supervisor and share your concerns, which is helpful. On the other hand, seeking legal help through someone outside of your company is probably the best and safest bet. An outside opinion might also change your perspective about what you heard, saw or read. Logic and facts are both needed in a whistleblowing situation.
Among the factors that a lawyer can help you understand in a whistleblower case are –
- What is the harm or misconduct? Does it involve a financial loss for the government or could it be harmful to employees or investors of your business?
- Is there a reward potential that might lead to a percentage of the recovery for you? Not every whistleblower program has a reward feature, but many do.
- The financial reward potential for whistleblowers might involve certain time-period constraints. You must report any wrongdoing within a specific window of time after it happened. There are different statutes of limitations for these programs, and they can be complicated. Your whistleblower lawyer will know the law and will provide you counsel regarding whether you may or may not have a claim.
There are also laws regarding “first to file” claim considerations. Another whistleblower may have already filed a case based on the same evidence you have. It is best to act on your concerns as soon as possible in most cases. At times, multiple whistleblowers have filed joint claims, but again, your legal advisor will have handled these matters before and will be able to determine whether your claim may be barred by another person’s prior claim.
There are a number of different whistleblower laws based on the industry or type of fraud or misconduct someone has witnessed. For example, the IRS whistleblower program provides mandatory rewards of 15 to 30 percent of any IRS recovery to whistleblowers who provide the IRS with information relating to tax non-compliance or avoidance exceeding $2 million.
For the Securities and Exchange Commission (SEC) whistleblower program, those who disclose fraud and misconduct that involves publicly traded companies or in the sale and trading of securities and commodities may receive up to 30 percent of the recovered money. The types of fraud that these laws generally involve are Ponzi schemes, insider trading, accounting fraud or activities that involve manipulation of the stock market. Even if your whistleblowing experience does not create a financial windfall for you, you should give serious consideration to reporting wrongdoing. And before you do, talking with a legal advocate is highly advised.
