FAQs About Whistleblower Retaliation
Becoming a whistleblower can entail stepping outside your comfort zone, meaning that sometimes whistleblowers experience negative reactions from those they blew the whistle on. While harassing actions are forbidden under a number of whistleblowing statutes, the reality is that sometimes whistleblowers experience what is known as retaliation.
We understand that worries about harassment and retaliation are often in the back, if not the front, of a whistleblower’s mind. The 2011 National Business Ethics Survey discovered that nearly one-half of U.S. employees (45 percent) witnessed wrongdoing in their workplace. Around two-thirds (65 percent) of those folks actually reported it.
Of the approximately 35 percent who did not report wrongdoing, nearly half (46 percent) gave fear of retaliation as their reason.
But, before you get carried away by your worries, let’s look at the facts—or, in this case, the FAQs—so you can become a whistleblower who is armed with knowledge, not fear.
What is retaliation?
Briefly, retaliation is any negative consequence experienced as a result of reporting wrongdoing under various whistleblowing statutes. On occasion, some actions can be perceived to be retaliatory when they are actually the result of miscommunication or misperception.
However, much of the time it is clear that an action is retaliatory. If you have become a whistleblower, and then have subsequently experienced any of the following situations, you are entitled to legal relief, because the following actions are prohibited:
- You have been denied benefits, overtime, or a promotion
- You have been disciplined for no reason
- You have been left out of meetings or off project teams
- You have been reassigned to a lesser job position
- You have been suspended, laid off, or fired
- You have been demoted or threatened with demotion
- You have been threatened with blacklisting (which renders you unable to secure future employment in your field)
- You have had your pay or hours reduced
- You have experienced threats or intimidation
- You have experienced harm to yourself or your property
- You have seen a new policy put into effect at your workplace which clashes with protections for whistleblowers.
The success of the whistleblower statutes depends upon the ability to freely report fraud without fear of retaliation. Therefore, those who created the statutes included protections.
Which laws protect whistleblowers from retaliation?
Applicable federal laws that cover protections for whistleblowers who bring qui tam suits are as follows:
- The False Claims Act (FCA) has strong protections against retaliation under Section 3730(h). Any employee who experiences harassment or retaliation because of their lawful whistleblowing activities is entitled to legal relief.
- The Sarbanes-Oxley Act of 2002 also contains retaliation protections. Employee complaints about lawbreaking that concern wrongdoing involving securities fraud, shareholder fraud, or wire, mail, or bank fraud, are all protected against retaliation. Even if there is no conviction at the end of the case, if the employee reported their findings in good faith, they are protected from retaliation. A whistleblower is not required to report fraud externally (to the SEC, for example) to gain these protections; even those who complain internally to a company superior are protected from retaliation under the law.
- The Dodd-Frank Act of 2010 bars employers from retaliatory actions against whistleblowers who report violations of laws that regulate financial firms, consumer finance, ratings agencies, accounting and corporate fraud, currency exchanges, and commodity exchanges. A number of Dodd-Frank provisions amplify the protections specified under Sarbanes-Oxley.
- In December, 2016, S. 795 was signed into law, permanently extending retaliation protection to whistleblowers who are employees of federal contractors or subcontractors, or of grantees or sub-grantees. A number of the protections in this law were first established during 2013 as part of the National Defense Authorization Act.
What types of behavior are protected under these laws?
Generally, behaviors known as protected disclosures safeguard you from retaliation. A protected disclosure is a formal statement you make as a whistleblower that reveals any of the following: fraud, corruption, false claims against government funds, or public safety hazards. In this instance, a whistleblower is legally protected from certain retaliations or reprisals, as we have previously listed.
Some examples of protected actions could include internal reporting of wrongdoing to a superior, the steps taken by a whistleblower to pursue a qui tam case, and the steps taken to stop a False Claims Act violation.
However, not all of your actions are protected. For example, if your boss makes you angry and you hit him, even if you were discussing fraud, your assault on your boss is not protected under the law. But if you as a whistleblower experience an attack or other damage such as a demotion, you are protected under the law.
What must be proved to move forward with a whistleblower retaliation claim?
If you are a whistleblower and you believe you have been retaliated against, you must prove the following:
- That you engaged in a protected activity or gave a protected disclosure
- That your employer carried out a negative employment action against you
- That the negative action happened because of your protected activity as a whistleblower.
One significant factor is the length of time that occurred between the protected action and the retaliatory action. If too much time passes between the protected action and the retaliatory action, there may not be enough cause to bring the case.
What is the statute of limitations for bringing a False Claims Act retaliation case?
Generally, the statute of limitations is three years from the date on which the retaliatory action occurred. However, it is always best to bring a case as soon as possible.
What types of damages for whistleblower retaliation can be recovered under the False Claims Act?
If you bring a successful whistleblower retaliation case under the FCA, you are entitled to the following legal relief:
- Reinstatement to your former position
- Twice your back pay
- Compensation for special damages, which often include costs of litigation and reasonable attorneys’ fees.
If I report fraud internally to a government contractor or grantee, does the False Claims Act protect me?
Yes. Internal reporting is considered sufficient notice that a whistleblower is engaging in protected actions.
Are efforts to stop a government contractor from committing fraud protected under the FCA?
The False Claims Act has protections for whistleblowers who attempt to prevent violations of the FCA as long as they can demonstrate they reasonably believe that their employer is either violating, or is about to violate, the FCA.
Do you have more questions? Are you thinking of blowing the whistle? We would like to assist you.
We use a wide array of tools and strategies when working with whistleblowers.
If you think you have the facts needed to bring a whistleblower case, our experienced whistleblower attorneys can review your case and help you file the appropriate disclosure statement. Under some circumstances, the government will intervene, or join in your lawsuit.