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Understanding the Basics of Whistleblower Legislation

What are the basics of whistleblower legislation, and how does it relate to you?

Basics of Whistleblower LegislationWhistleblower legislation isn’t a modern invention. It arose from corruption in the 19th Century, particularly as predatory companies scrambled to take advantage of government expenditures made during the Civil War. Fighters on both sides of the conflict were at a loss for essential supplies, from boots and jackets to edible food.

Companies contracted to provide the goods failed to deliver or dispensed products of such poor quality they were worthless. Widespread fraud directly contributed to deaths on the battlefield.

Establishing the ‘Lincoln Law’

President Abraham Lincoln is famous for many things, but one of his lasting achievements was the passage of the False Claims Act (FCA). Sometimes called the “Lincoln Law” in his honor, the act gives individuals the right to sue other people, businesses and organizations on behalf of the United States when they are guilty of defrauding government programs. Not only does it stop the crime from happening, it also gives the individual a chance to share in settlement or judgment payments.

Litigation doesn’t stop there. It’s important for fraud reporters to know criminal charges often accompany these lawsuits. A recent example is the owner of Texas-based Houston Healthcare Clinics, found guilty of Medicare fraud. The FCA case resulted in fines of $2.7 million and a 36-month prison sentence.  

The FCA has played a central role in breaking up corruption in all major industries. Inappropriate military spending was a hot topic in the 1880s and again in the 1980s. In previous decades, financial mismanagement was all the rage. Today? Whistleblowers are using the False Claims Act to force changes in the healthcare industry and stop companies from taking advantage of our most vulnerable populations.

How Is Fraud Uncovered?

One of the reasons Medicare fraud is on the rise is because of how easy it is to get away with it. Many times, patients are in no position to go over their insurance statements. Complicated rules regarding medical coding also make it difficult for a patient to know whether they’re billed correctly.

Many of the whistleblowers filing suit under the FCA are employees of companies committing fraud or their partners. A clinical social worker who noticed an ambulance company was providing transportation for patients at a premium sued the company and collected roughly $160,000 from the settlement. She helped her finances, but more importantly, she stopped the company from taking advantage of her patients and the Medicare program.

In other cases, secondary victims uncover the problem and speak out. In Florida, former medical director and whistleblower Dr. John Simons discovered his signature on paperwork he didn’t sign. Also from Florida, Dr. Donna Bell discovered a medical supply company was using her credentials to forge prescriptions for medical equipment to patients who weren’t in her care.

Rarely do victims have the knowledge or know-how to fight fraud impacting their bank accounts and their quality of life. It is up to people in the industry to keep businesses honest.

Why Is the Fair Claims Act So Effective?

The Fair Claims Act offers whistleblowers the best of both worlds. On one hand, you’re able to guide the hand of justice and reap the rewards. Some fraud reporters receive tens of millions of dollars for their role in stopping government-related fraud.

In May 2018, the U.S. Securities and Exchange Commission awarded three whistleblowers a combined total of $83 million. That’s larger than most lottery winnings. But it didn’t happen by accident. The law rewarded the individuals for tipping off the SEC about fund mismanagement at Merrill Lynch.

The promise of financial reward is essential to convincing some people to come forward. Why? Because of the risks involved in outing crime.

The federal and state governments have laws to protect whistleblowers from harassment, demotion, dismissal, blacklisting and other forms of retaliation. Sometimes these laws only apply to public workers. In few areas do they extend to all employees. In False Claims cases, you might have fewer options.

Looking for Legal Protection?

It’s helpful to work with a competent legal team who understands whistleblower protections. How you report on problems makes all the difference.

A court dismissed the case of Kathy Reitzel, former finance director for the Keys School District in Florida. In 2009, the school board forced Reitzel to retire early after she outed the district’s director of adult education for embezzlement. Monique Acevedo, the wife of then-superintendent Randy Acevedo, racked up over $400,000 in personal charges on the school’s accounts.

Unfortunately, Reitzel had knowledge of the embezzlement in 2007. She went to the superintendent to deal with the matter privately. If she’d gone through the proper channels, the school board said, Reitzel would have saved the district a significant amount of money — and her job.

Having guidance when navigating whistleblower laws will ensure you stop wrongdoings without putting yourself at excessive risk.

Contact the experienced whistleblower legislation attorneys at Bothwell Law Group by clicking or calling 770.643.1606 today.

What You Need to Know about Different States’ Whistleblower Laws Before Coming Forward

How do different states’ whistleblower laws differ from federal protection?

state whistleblower lawsStates’ whistleblower laws provide added protection for people, but they also come with their own set of eligibility requirements. Assumptions can spoil your case before it even begins. Working with a lawyer can help you navigate the complaint process the appropriate way to ensure you’re covered by whistleblower protections. You might also be able to share in any judgments or settlements arising from your complaint.

Which States Have Whistleblower Protection Laws?

The federal government has a few different laws protecting employees who come forward about bad practices in the world place. In some instance, these complaints fall under the False Claims Act. If the inappropriate behavior involves defrauding the government, the person reporting the fraud can file a lawsuit on behalf of the nation. Once the case is over, the reporter is eligible to up to 30 percent of judgment or settlement fees.

Other federal laws protect the rights of public employees. Generally, these laws prevent demotion, firing, industry blacklisting, unreasonable work changes, and harassment. The same is true for laws in certain states.

The following states do not have whistleblower protection laws:

  • Arkansas
  • Georgia
  • Idaho
  • Maryland
  • Mississippi
  • Montana
  • Nevada
  • New Mexico
  • North Carolina
  • South Dakota
  • Texas
  • Vermont
  • Virginia
  • Wisconsin
  • Wyoming

Some states extend whistleblower protection to public employees. Others, like California, extend those rights to everyone. However, in states without whistleblower protections, professional associations and company policies often provide them.

However, in order to be eligible for protection under laws or policies, complaints have to follow proper procedures.

What Benefits Are Available to Whistleblowers?

There are different types of whistleblower complaints, but the two most common are:

  • Employees turning in a business for illegal or unethical behavior, and
  • Individuals turning in a person or business for government-related fraud

Whistleblower protection for employees prevents on-the-job harassment, industry blacklisting, firing or demotion, and the assignment of unreasonable transfers or changes in duties. In some cases, whistleblowers are able to stay anonymous.

Take, for instance, the case of 15-year hospital staffer Donna D. Ladka, of White River Junction, New Hampshire. After complaining about a doctor’s inappropriate sexual behavior, the doctor stopped speaking with her and the hospital relegated Ladka to paperwork duties. Gifford Medical Center later fired Ladka, citing supposed patient privacy violations. The hospital opted to settle with Ladka out of court, and the doctor involved had to undergo ethics training.

When it comes to fraud cases, whistleblowers enjoy additional benefits. The False Claims Act gives people the right to sue on behalf of the U.S. government. If the case is successful and results in a judgment or settlement, the whistleblower receives up to a third of the payment.

People can opt out of both protections and financial benefits in the blink of an eye simply by complaining in the wrong way. It’s important to understand the state and federal laws relevant to your situation so you don’t give away your rights.

Even then, there are situations which might leave you at risk.

Whistleblowers Who Left Themselves Vulnerable

Employer concerns over employee social media posts have grown steadily with the rise of sites like Twitter and Facebook. So many people were being fired – and contesting – over criticisms of their companies, the National Labor Relations Board addressed the topic specifically.

While encouraging employers to judge instances on a case by case basis, the NLRB supported firings, demotions, and similar consequences when an employee shares damaging personal opinions online. If you’re posting a complaint held by a group of employees? You could be in the clear.

Unfortunately, by venting online you might be giving up other important rights. For instance, a government agency who sees your post could sue your company based on those complaints before you get the chance. Therefore, if they’re found guilty of defrauding the government, you wouldn’t have a claim to any portion of the judgment.

Social media is a wonderful way for consumers to make changes in the way their favorite companies do business. However, employees should stick with official procedures for logging complaints. Sometimes, these missteps are surprising.

Barbara Gonzales, former financial director for Killeen, Texas, found out how hard it can be to register your complaint to the proper authorities. In Texas, whistleblower protections extend only to employees who notify a police officer of crimes committed in the workplace. City and company policies often fail to acknowledge this process, encouraging people to file complaints in alternative ways that will leave them vulnerable.

Finally, while protections are available at the state and federal level, whistleblowers need help navigating the legal waters when it comes to stopping fraud and other crime. Click to find out more about state whistleblower laws by contacting Bothwell Law Group online.

Is Workplace Whistleblowing Effective in Educational Settings?

When it comes to education, workplace whistleblowing might seem like a more significant risk than it is.

Workplace WhistleblowingIs workplace whistleblowing really protected when it comes to education? The way some administrators run their schools and districts would make you wonder. Just asking for small changes or money for simple repairs can put you on the naughty list. It can be hard to believe that making an official complaint would lead to anything but problems, but there are laws to protect you from facing retaliation. In some cases, it’s possible to make a complaint while staying completely anonymous.

Part of the Problem or Part of the Solution?

Being part of a team is central to educational institutions and a team spirit is key to their success. Every teacher, every aide, every tutor or janitor in place plays a role in motivating students to perform their best. It’s normal for administrators to put in 110 percent and to expect the same from their employees.

Working as part of something larger than yourself is a rewarding experience, but what happens when problems arise? There will always be some people who see any criticism as an attack. Others will always feel strongly you should keep complaints to yourself or handle them privately. Turning in a complaint might come across as disloyalty, and suddenly, you’re not dealing with a problem anymore. You’re in a situation where it is you vs. them. If you “snitch,” you become the enemy.

This destructive cycle affects schools throughout the U.S. and has contributed to significant abuses regarding the handling of funds and of students. It’s imperative for people to feel safe coming forward about problems to ensure our kids stay safe. Unfortunately, the community culture among most school staff works against filing complaints.

Avoiding an “Us vs. Them” Situation

In theory, there are laws in place to protect whistleblowers; however, regarding education, strict guidelines are dictating how and to whom they should make the complaints. A lawyer can walk you through the specifics of your situation, though the Department of Education covers the basic framework here.

Government employees have different protections and responsibilities than those who are working for contractors, or perhaps, just applying for jobs.

The law can prevent you from being:

  • Fired
  • Demoted
  • Transferred
  • Harassed
  • Or threatened

Among other things, for filing a complaint, the law can’t force your coworkers to continue to trust you or be friendly. Hiring a lawyer before filing a complaint can sometimes help you preserve your anonymity.

The Difference Workplace Whistleblowing Makes on Student Quality of Life

For obvious reasons, it’s difficult for whistleblowers in education to come forward, but the benefits often outweigh the risks. When institutions misuse and abuse their positions, they have a direct and negative impact on the lives of students.

For instance, whistleblowers in education have been responsible for stopping:

  • Physical and sexual abuse
  • Failure to provide adequate special education
  • Mismanagement of school funds

Unfortunately, too many people assume they have protections they don’t have when sharing information. According to the Department of Education, there are only certain people to whom you can complain to for whistleblower laws to count.  

Former Illinois principal Julie McArdle found this out the hard way when raising concerns about questionable spending of her predecessor-turned-superior. Not only was McArdle fired, but the court found in the school boards favor, saying First Amendment protection doesn’t apply when you’re speaking on behalf of a government employer. She hadn’t made the complaint to the appropriate person, so it wasn’t covered under whistleblower laws or as freedom of speech.

Things are turning out differently for a part-time nurse for the Park City School District in Utah. After facing harassment, hostility, and termination following her official complaints regarding a lack of services for diabetic students, Nicole Kennedy sued the district and select administrators for violating whistleblower laws. Summit County 3rd District Court Judge Richard Mrazik refused to dismiss the lawsuit last month. The case is currently in mediation.

Education Fraud and Qui Tam Lawsuits

The False Claims Act allows individuals to bring qui tam lawsuits against those who engage in government-related fraud on behalf of the nation. These cases allow whistleblowers to share in judgments. Billions of dollars go to whistleblowers every year. However, it’s essential to file claims in the right way to be eligible to take part.

Fraud cases from the last year include:

  • Individuals filling out federal loan applications for students without their knowledge
  • Event planners scamming schools out of money for services they never intended to provide
  • Tutoring companies billing the government for services they did not offer
  • Charter schools using deceptive strategies to avoid paying taxes

What’s unique in these situations is that companies faced fines but individuals also went to jail—in some cases, for ten years or more.

We know how difficult it is to stand up and do the right thing. Having the proper legal representation makes whistleblowing simpler and safer.

Contact the skilled workplace whistleblowing attorneys at Bothwell Law Group by calling 770.643.1606 today or connecting with us online.

How a Lawyer for Whistleblowers Works

How does a lawyer for whistleblowers help and protect you? We’ll show you how to fight back and stay safe.

Lawyer for WhistleblowersUnder the law, a lawyer for whistleblowers is meant to ensure people feel safe coming forward when bad people are doing bad things. In certain situations, you can file complaints anonymously to help prevent retaliation. In others, you may be able to benefit financially from uncovering fraud and other wrongdoings.

Generally speaking, laws protect whistleblowers from the following:

  • Threats or harassment
  • Demotion or termination
  • Industry blacklisting
  • Failure to promote
  • Prosecution

Your employer’s policies will have the most significant impact on the responses you should expect for filing a complaint with the company or against the company through an outside agency. Your HR department should have an updated employee handbook, a document you should be able to request without raising any red flags.

The protections provided through U.S. and state law depend primarily on your situation. Who is your employer? What are you reporting? Every whistleblower doesn’t have the same protection.

Understanding the Whistleblower Protection Act

The Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 provide federal employees with the right to disclose information on wrongdoing. Other federal and state laws encourage reporting of wrongdoing while offering measures to keep informants safe.

In certain situations, enforcing privacy rules is essential to protecting whistleblowers. For instance, laws prevent the Securities and Exchange Commission from revealing the identity of informants or information that could lead to their identification. People’s lives are in danger when millions of dollars are at stake. A lawyer can help you limit your risks of exposure.

Unfortunately, the courts responsible for claims sometimes restrict the way they interpret the laws, placing whistleblowers at risk. If you have to expose classified information, for example, it’s important to discuss the ramifications with a legal consultant. Espionage charges are no laughing matter. It’s essential to protect the public. But laws are in place to make that possible while avoiding jail or other negative repercussions.

Protected Actions and Liabilities

It’s important to distinguish between whistleblowing activities and other actions an employee takes. Whistleblowing will not protect you from the consequences of your behavior. Mark Whitacre is a good example.

As an executive for an agricultural corporation, Archer Daniels Midland, Whitacre outed the company for price-fixing while at the same time embezzling more than $9 million. Being a whistleblower didn’t stop him from going to jail for his crimes.  

Likewise, if you engage in behavior that breaks codes of conduct at your employment in the wake of a complaint, you might face termination, demotion and other repercussions. The business just can’t target you unfairly because you brought problems to light.

Whistleblowers and the False Claims Act

Some of the laws not only provide protection from harm but offer incentives for exposing illegal activities. The False Claims Act (FCA) affords individuals the right to file qui tam lawsuits, meaning they can sue others on behalf of the United States government. If a court decides the defendant is guilty of defrauding the government, the whistleblower receives 15 – 30 percent of the judgment. The law has successfully reduced corruption in a number of industries.

These days, courts wield the FCA to stop Medicaid and Medicare fraud, but it’s useful in other applications as well. Last year, the law helped reclaim more than $3 billion in government funds.

In one case, when a senior control analyst for medical device-manufacturer Alere came forward regarding the product’s unreliability, she received $5.4 million as part of a settlement agreement.

Mylan Inc., the manufacturer of the EpiPen, came under fire for raising their products price by over 400 percent. At the same time, the company was misclassifying the product as a generic to qualify for a lower 13 percent Medicaid rebate rate. The $465 million went back into federal and state healthcare programs.

Billing Complications

Unfortunately, the U.S. Department of Justice might have become too critical of billing policies in recent years. In November 2017, a court overturned a landmark billion-dollar judgment against rehabilitation center HCRManor after the company’s legal team successfully argued against the DOJ’s discover methods and star witness.

It’s important to discuss your risks and obligations in situations where you file a case but wind up losing in the end. You also want to ask about the appropriate method for making a claim. Until recently, for instance, if whistleblowers turned information over to an agency before informing the SEC of a problem, they were ineligible for qui tam representation.

New “safe harbor” rules recently allowed an informant to collect a $2.2 million in a case where before the government could have claimed every penny. There are many ways to protect your rights by using industry rules and legislation.

Are you considering blowing the whistle? Make sure you have the legal guidance you need before you move forward. Click to find out more about protection for whistleblowers by contacting Bothwell Law Group online.

Do Whistleblower Protection Laws Apply to All Industries?

Unraveling what Whistleblower Protection Laws mean for you.

whistleblower protection lawWhistleblower Protection Laws aren’t as simple as one body of legislation. Federally, over 20 laws address reporting crimes and other wrongdoings. Each state has its own laws governing retaliation and the like. Professional associations have their own methods for managing complaints within their respective industries. Outcomes depend on the types of information you are sharing. They also depend on the role you play in the offending organization. Finally, they depend on whether or not you use the appropriate methods for calling attention to the problem.

What Is Whistleblowing?

The broadest definition of whistleblowing is reporting on criminal or otherwise immoral conduct by a company, organization or individual. Many states narrow the term to mean employees – perhaps limited to those employed by the government – who are reporting on criminal activity committed by their employer. Where you live and work, the type of work you do and the offenses you’re reporting on will all determine whether you’re covered under Whistleblower Protection Law.

Speaking out about wrongdoings in the workplace is a bold move regardless of what legal protections are in place. The government understands workers make sacrifices to bring attention to problems. Whistleblowers might face social isolation, threats, financial stress and other consequences, not to mention the guilt of turning friends and associates into the authorities for actions which could have noble intentions.

Take Medical Insurance Fraud

Medical insurance fraud is a good example. An assistant in a dental office might notice additional billing for services no one has rendered. The dentist explains the fees cover co-pays for parents who can’t afford them. It sounds legitimate enough, but experience shows a dentist who will fudge copays will eventually put patient care at risk to increase profits. It’s a slippery slope.

Under whistleblower laws, it’s possible the assistant could go to the authorities with fraudulent billing complaints or sue the dentist through a qui tam case. When individuals bring suits against those who defraud the government, they not only put a stop to waste, they have the opportunity to collect a healthy portion of judgments and settlements. The provision is part of one of the oldest laws on whistleblowing, the False Claims Act, otherwise known as Lincoln’s Law.

Every industry has some protection afforded to whistleblowers, even national security and the military. In fact, the Whistleblower Protection Act Former President Ronald Reagan signed into effect in 1989 had concern for federal employees at the forefront. However, whistleblowers in every industry have protection available when turning employers in for various infractions.

Examples of Whistleblowers Across Industries

  • Linda Tripp – White House staffer during the Clinton Administration who went public with the President’s extramarital affair with young intern Monica Lewinsky
  • Frank Serpico – New York police officer who came forward with complaints about corruption within the department
  • Karen Silkwood – A chemical technician who worked for Kerr-McGee Cimarron Fuel Fabrication Site and raised concerns regarding the company’s handling of plutonium
  • Jeffrey Wigand – A tobacco company executive who admitted the industry knew their products were addictive
  • Mark Whitacre – An executive for a commodities trading company, informed the FBI of company price-fixing
  • Sherron Watkins – Enron Corp. executive who exposed the oil companies’ fraudulent practices

Pros and Cons of Being a Whistleblower

In many cases, whistleblowers receive a portion of settlements or court judgments against the companies they expose. In other situations, they’re the subjects of books, movies or awards. While fame and fortune don’t always follow, blowing the whistle on important matters can result in major financial gains. It can also lead to jail time.

In 2010, an Army soldier named Bradley Manning released over 750,000 classified documents online through WikiLeaks to support claims of misconduct by U.S. forces. Manning wound up facing a potential death sentence, ultimately sentenced to 35 years at Fort Leavenworth.

Similarly, government contractor Edward Snowden faces espionage charges for releasing classified documents of the National Security Agency. He remains a wanted man on American soil. However, Snowden has escaped prosecution and is currently living in Russia under the protection of asylum.

Making the Right Decision Requires Qualified Legal Representation

Whistleblower protection laws don’t protect every employee in every situation. The confines of your position and the type of information you share has a big impact on the final outcome. Breaking certain legal agreements, national security protocols and other requirements of your job can land you in hot water. However, performed within the confines of the law, blowing the lid off wrongdoing is a smart and brave way to better the world. It’s essential for potential whistle-blowers to seek legal counsel before they come forward.

Click to find out more about Whistleblower Protection Law by contacting Bothwell Law Group online.

How Whistleblower Laws Can Prevent Bad Stewardship of Taxpayer Dollars

Put whistleblower laws to work for the common man.

whistleblower lawsWhistleblower laws make it easy for people to come forward when they know trouble is afoot. They also encourage people to bust corruption wide open by offering them protection from retaliation — and the chance to receive a small fortune.

How the False Claims Act Encourages People to Do the Right Thing

Telling the truth isn’t always easy, especially when lies seem to have good intentions behind them. Many instances of fraud look like someone has done something to help out the little guy, but the bigger picture shows a different story.

Take Medicaid insurance fraud, for example. Policies in states like Iowa are changing to drastically limit the amount of dental work state insurance will cover in a year. Why?  Because so many dental offices have figured out ways to bilk the system tens of thousands of dollars per patient. They’ve performed unnecessary work, lied about services and even put people in danger to make an extra few dollars. Now, children will suffer without the dental care they need because of greed. These kinds of crimes count!

It takes a brave soul to say something, but if you face the risks you may reap the benefits. Consider the hospital employee who turned the company in for falsifying grant applications. The facility didn’t house nearly many as beds as they’d claimed. The result was a $12.9 million settlement, of which $3.3 million went to the whistleblower.

Filing Suit ‘For the People’

The False Claims Act makes it possible for individuals to sue corporations, groups, and individuals for defrauding the government. Individuals wage these “qui tam” lawsuits on behalf of the nation.

The law sweetens the deal by allowing the filer to take home a portion of the winnings. While this isn’t the only reason whistleblowers come forward, it fuels motivation in many cases.

As the law is currently written, whistleblowers can share in up to 30 percent of a settlement, based on triple the damages involved in a case. See the wrong thing at the right time, and your conscience could make you a lot of money.

Unfortunately, whistleblowing doesn’t come without risk. Laws and industry policies offer various forms of protection, but they do not apply to everyone in every situation. State laws might also limit the reach of federal practices, so it’s important to seek legal counsel before coming forward with damaging information.

Whistleblower policy often protects against the following:

  • Termination and demotion
  • Hostility and threats
  • Severe schedule changes or expectations

Changes to the False Claims Act Through the Years

While perfectly suited to deal with the problems of the modern day, the False Claims Act arose out of the corruption of the Civil War. The greed of the day horrified leaders. Contractors promised to provide troops with quality food, clothing, and supplies only to fail to deliver. These bad business deals, fueled with government funds, sometimes left Union Army troops starving and stranded.

President Abraham Lincoln, initially signed the False Claims Act in 1863, making it clear early on that the United States would not let corruption take hold. It cleaned up the country’s track record … for a while.

Unfortunately, the country forgot those lessons as the years rolled on. During the 1940s, Congress gutted the False Claims Act, removing all incentive for people to report fraud affecting government funds. It wasn’t until the Reagan Administration that people began to take this duty seriously. Today, there are significant protections for those looking to help the little guy.

The False Claims Act is just one way to fight corruption at the government level and secure tax dollars for those with good intentions. However, the country has 22 federal laws giving protection to whistleblowers of various kinds. States have their own standards. Associations and licensing boards offer their own incentives as well.

Using Whistleblower Laws to Your Advantage

Throughout the last 100 years, whistleblowers have uncovered serious risks to government funding and to the people. Karen Silkwood gave her life to the cause when a mysterious auto accident prevented her from testifying against her employer. Critics of his decision to speak out on police corruption shot Frank Serpico. He narrowly survived. Edward Snowden is currently living abroad pending extradition to the U.S. on espionage charges for sharing classified documents with the press.

Protection laws do not offer ultimate protection or keep you safe from all legal repercussions. It’s important to discuss your situation with a legal representative before you speak out.

Contact skilled whistleblower laws attorneys at Bothwell Law Group by calling 770.643.1606 today.

Are Protections for Whistleblowers Enough to Make It Worth It?

Protections for whistleblowers are essential for the False Claims Act to work correctly.

Protections for WhistleblowersWithout adequate protections for whistleblowers, fewer individuals will come forward to report fraud. The act of blowing the whistle is a stressful and challenging decision. Most potential whistleblowers know they might face backlash for bringing the fraud to light. Congress understands these risks. So, there are several provisions in the Claims Act to provide protections for those who serve as whistleblowers.

Confidentiality of the Whistleblower

The best protection for a whistleblower is to stay unknown. This is somewhat easy to do early in the whistleblowing process. An anonymous email or phone call to the right government regulating agency may be enough to stop the fraud and catch those responsible. But in most situations, that’s not enough. The phone call or email may be enough to start an investigation. But it’s probably not enough to result in prosecution of the responsible parties.

To make the most of the whistleblowing, a qui tam lawsuit may be necessary. This is a unique civil lawsuit where a whistleblower (called a relator), sues the responsible party on behalf of the federal government. To begin a qui tam lawsuit, the relator will file the civil complaint “under seal.” That is a legal term for “in secret.” After filing the complaint, the relator will notify only the government about the qui tam action. The government will then investigate the case and determine if it will join the relator in the qui tam action.

During this investigation period, which can last many months, the identity of the whistleblower will remain hidden. That means the whistleblower will be relatively safe. But as the case proceeds through court, the responsible party will likely discover who the whistleblower is.

Rewarding the Whistleblower

One possible way to protect the whistleblower is to provide a financial reward for blowing the whistle. The chance for a potentially sizeable reward can provide financial protection in case the whistleblower loses his or her job or is unable to find continued employment. This reward is only possible if the whistleblower brings a qui tam action. Or, if there is a specific whistleblowing law that allows for the reward.

In most cases, the reward will only be possible in a qui tam action brought under the False Claims Act. This means the whistleblower can expect an award that is equal to 20 to 25 percent of the total amount of money recovered by the government. In some situations, the whistleblower will receive less. For example, when they have relatively little involvement in gathering additional evidence of the fraud or they actually took part in it. But in some cases, they can receive more, such as 30 percent of the total amount of money recovered. This is possible when the whistleblower receives little, if any, help from the government during the qui tam lawsuit.

False Claims Act Anti-Retaliation Provisions

Finally, there are the anti-retaliation provisions in the False Claims Act. These prohibit an employer from retaliating against a whistleblowing employee. The retaliation can take many forms, including firing and employee discipline. If the whistleblower can prove retaliation, they can potentially receive double the amount of actual damages (such as lost wages) plus reinstatement and attorney’s fees.

To prove retaliation, the whistleblower must establish three things: that the employee participated in whistleblowing activities, the employer knew who the whistleblowing employee was and the employer discriminated against the employee because he or she was a whistleblower. This last requirement is often the hardest to prove. An employer who really wants to retaliate against the employee will often make up some other explanation for the firing.

For example, the employer will say they fired the employee because he or she was late to work or had other unrelated disciplinary issues. The employer will also try to hide the fact that it knew who the whistleblower was. Remember, the employer cannot be liable for retaliation if it didn’t know the identity of the whistleblower. It’s impossible for an employer to retaliate against a whistleblower if it didn’t realize the whistleblower engaged in whistleblowing activities. All this means that whistleblowers sometimes have a difficult battle proving that the employer violated the False Claims Act’s anti-retaliation provisions.

Is It Enough?

That’s a loaded question and one that is impossible to answer without more information. Whether protections for whistleblowers are adequate will depend on where the retaliation may come from, if a qui tam reward is possible and the chances that reporting fraud will result in an investigation or court case. To get a better understanding of the risks of whistleblowing, an individual should consult with an attorney who does work on whistleblower cases.

Want to Find Out More about Protections for Whistleblowers Stay Safe?

Contact the skilled protection for whistleblowers attorneys at Bothwell Law Group by clicking or calling 770.643.1606 today.

How to Effectively and Securely Be an Education Fraud Whistleblower

If you’re trying to decide if you want to be an education fraud whistleblower, you will have questions about how to do it right.

education fraud whistleblowerDeciding to become an education fraud whistleblower is a huge decision. By taking the step to report fraudulent activity, an individual exposes himself or herself to retaliation from those who gained from the fraud. Additionally, the process can take a lot of time and require tremendous effort. Calling in an anonymous tip might be easy, but being a whistleblower can involve a lot more than that. Court appearances, answering questions and gathering documents are all things a potential whistleblower might have to do.

This sounds daunting, and it can be. But to be an effective whistleblower while also staying as secure as possible, there are two primary things a person should do.

Keep a Secret

When it comes to staying secure as a whistleblower, secrecy is vital. A principal, school board or dean can’t retaliate if they don’t know who to retaliate against. It’s easy to understand how avoiding confrontation is a lot easier than winning a confrontation.

So why is avoiding retaliation such a big deal? It’s because it can lead to a lot of professional and personal problems. At the bare minimum, retaliation will probably consist of coworkers and supervisors doing everything they can to make a whistleblower’s work life miserable. It might consist of shunning them from teacher’s lounge conversations about the latest episode of a popular television show. Or maybe someone will spit in the whistleblower’s lunch. Those things sound awful, but they are only the minor retaliatory measures that could occur.

More serious retaliation can consist of physical violence, threats, firings, and blacklisting. Losing a job might not be so bad for some whistleblowers. They might not want to continue working for an organization engaging in fraud, especially one that should help children. So getting fired isn’t that big of a deal for those who plan on resigning anyway.

But the worst professional consequence is probably going to involve blacklisting. When this happens, it’s challenging to find a job in the same field or industry. At the very least, the whistleblower should expect to have to move across several counties or states to find another, similar job.

Then there are the threats and potential for physical violence. This is the worst type of retaliation, although it’s usually relatively rare. Considering how bad this retaliation can be, a prospective whistleblower may wonder how to best stay secret. This starts by speaking with an attorney.

Lawyer Up

The best way to stay secure when serving as a whistleblower is to get the advice of someone who has a lot of knowledge about it. One way to find this person is to consult with an attorney that works in the whistleblower legal field. Whistleblowing is a unique area of law, so it’s common to find attorneys that focus much of their time and energy on only whistleblowing legal cases.

A whistleblower attorney can provide advice on how to become a whistleblower as safely and securely as possible. They will give tips on how to report fraud anonymously and what expectations of secrecy a whistleblower can expect. For instance, if a whistleblower reports fraud and an investigation takes place which results in civil or criminal legal proceedings, then a whistleblower’s identity will come out. The only question is when.

Staying secret forever is very hard to do. One way a whistleblower attorney can help is by making the process as effective as possible. It will be easier for a whistleblower to handle retaliation if they know they will get a financial reward (through a qui tam action) or that blowing the whistle will lead to positive changes.

Professional Advice Is a Must

To achieve either one of these goals, a whistleblower will probably need professional legal advice. For example, to bring a qui tam action, the law actually requires the whistleblower to hire an attorney. This is because, in a qui tam action, the whistleblower is bringing a lawsuit against the person or organization committing the fraud on behalf of the government. Therefore, the consequences of the qui tam action fall on the government (at least in theory), not the whistleblower.

Even if the whistleblower doesn’t care about money or bringing a lawsuit, an attorney is helpful because they can make the act of whistleblowing as worthwhile as possible. They can advise the whistleblower on how to safely and legally gather evidence so the people involved in the fraud can face the consequences in court. The last thing a whistleblower wants to do is expose themselves to retaliation by reporting the scam. They may then have the responsible parties find a way to escape liability because the whistleblower improperly obtained evidence. Or worse, the whistleblower wants to avoid accidentally tipping off the guilty parties in a way that allows them to destroy valuable evidence.

Still Want to Be an Education Fraud Whistleblower?

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How PricewaterhouseCoopers Learned the Importance of Whistleblowing, the Hard Way

Whistleblowing can reveal tons of problems and mistakes, so it’s no wonder so many companies don’t like it.

whistleblowingWhistleblowing is a thankless activity. It involves calling attention to problems within an organization, with many of these problems consisting of illegal behavior. This results in the whistleblower creating many enemies. To make matters worse, it’s usually hard to find someone who will appreciate the whistleblowing.

In many instances, it’s the general public or society as a whole who benefits from the whistleblowing. So while serving as a whistleblower will help others, it’s hard for anyone else to recognize the sacrifice and work a whistleblower must provide. Despite all these challenges, blowing the whistle on improper behavior is still a good thing. A recent example involving PricewaterhouseCoopers demonstrates this.

What PricewaterhouseCoopers Does

PricewaterhouseCoopers (PwC) is a large, well-known company that provides professional services to business and organizations all over the world. It’s most famous for its auditing services, where its accountants and auditors review the financial books and procedures of other companies.

The Problem with Auditing

The auditing profession is a reputable and necessary one. Most companies don’t have the time and money to look over their own financial statements to ensure accuracy and compliance with relevant laws, rules and regulations. But most importantly, companies need an independent set of eyes to look things over. It’s hard for investors and outside officials to trust the financial statements of a company if the company itself prepares and reviews the information. After all, it’s in the company’s best interest to hide the flaws and exaggerate the positives.

That’s where companies like PwC come in. They provide their accounting and auditing expertise so it can assure others that a company’s “books” are truthful and in compliance with specific accounting standards. The problem is that PwC doesn’t always provide an honest and unbiased review of a company’s financial statements.

This is because PwC gets paid by the very company it audits. No company being auditing wants to receive a bad review! The last thing the Chief Financial Officer of a company wants to hear is that its accounting department is “cooking the books” or otherwise engaging in improper bookkeeping. Unfortunately, this happens more often than any company would like to admit.

Not only is this embarrassing, but it can result in large amounts of money to make reparations, or even lead to lost income. Imagine a defense contractor winning a multi-billion dollar contract with the United States government. Then its auditing company (such as PwC) discovers that the bid to win the contract was artificially low due to hiding research and development costs. This is a serious problem because it could jeopardize billions of dollars in revenue.

In a perfect world, the defense contractor would be happy the auditing company found the truth, admit its mistake to the federal government and take its chances. But what sometimes happens is that the defense contractor tries to hide the facts. How does it do this? By pressuring the auditing company.

How Do Clients Put Pressure on PwC?

Like other auditing companies, PwC charges a fee for the services it provides to its clients. But when these services reveal bad news that annoys, angers or upsets the client, there is pressure on PwC to ignore or sugarcoat the unpleasant information. There is this pressure because PwC wants repeat business.

It’s unlikely the client will refuse to pay for the audit that uncovers terrible information. But when the client needs another review, they’re probably going to want to find an auditing company that is willing to either look the other way or gloss over any problems it sees. The auditing industry is extremely competitive with a lot of money at stake. So it’s easy to understand why a company like PwC would want to provide dishonest audits. And thanks to a whistleblower, we now know that this actually happened.

The PwC Whistleblower

Mauro Botta (Mr. Botta) was an employee at PwC for many years. During his time there, he alleges that he found evidence PwC provided misleading bookkeeping and auditing services to its clients. At first, he was honest and brought attention to the problems with PwC’s clients. Mr. Botta claims that PwC responded in at least one instance by taking him off the project at the client’s request. Mr. Botta then went to the Securities and Exchange Commission (SEC) to blow the whistle on what happened to him and what went on at PwC. Soon after, PwC fired Mr. Botta and blacklisted him. Other accounting and auditing companies did the same.

PwC’s Lesson

In May 2018, Mr. Botta began a lawsuit against PwC. He alleges retaliation for blowing the whistle on the “fraudulent” and “deceptive” behavior at PwC. Mr. Botta relies on various state and federal laws, including the California Whistleblower Protection Act and Sarbanes-Oxley. Assuming Mr. Botta’s allegations are true, PwC is learning that it should not only do the right thing when auditing clients, but not retaliate against a whistleblower.

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Can I Trust in the Whistleblower Protection Policy If I’m Going to Report Medicare Kickbacks?

A good whistleblower protection policy helps make it possible to discover fraud.

whistleblower protection policyWithout a good whistleblower protection policy, it’s a lot harder for the federal government to find people willing to help discover and prosecute fraud. Yes, there are financial incentives to encourage people to step forward and stop the fraud. However, these monetary rewards aren’t always enough.

What’s Stopping a Potential Whistleblower?

It’s not easy to be a whistleblower under the False Claims Act. Theoretically, an individual can serve as a whistleblower by sending an anonymous email. Or they can make a telephone call that brings the fraud to the attention of the federal government. But to prosecute the people responsible, the whistleblower almost always has to provide more information, including their identity.

A whistleblower revealing who they are can pose a serious problem. That’s because it can subject them to revenge or retaliation by anyone who might commit fraud against the federal government. One way to persuade potential whistleblowers to step forward is to provide them with a financial reward. But sometimes that’s not enough.

Why Isn’t a Monetary Reward Enough for Whistleblowers?

Even when a whistleblower (the technical term is a “relator” in a qui tam legal action) cooperates to the best of his or her ability, that doesn’t guarantee a sizable financial reward. The federal government might believe that the whistleblower didn’t do everything he or she could. Or maybe the whistleblower gets a financial reward, but it is much less than expected.

For example, let’s say a court believes the relator took part in the fraud. They might lower the financial reward to only 10 percent of the amount recovered. This is much lower than the 30 percent that is sometimes possible.

Another way the relator gets less money is if the federal government isn’t able to recover as much money as planned. Perhaps the fraudster stole $100 million. But for whatever reason, the relator could only convince the court that the fraudster took $10 million. Even if the relator receives the highest percentage reward possible of about 30 percent, $3 million is a lot less than $30 million.

Therefore, to further convince potential whistleblowers to step forward, there are special protections set in place by the False Claims Act.

False Claims Act Protection #1: Secrecy

The easiest way to avoid revenge from coworkers or bosses is to keep them from ever knowing who the whistleblower is. When first blowing the whistle, the whistleblower can usually keep their identity a secret. They can report the fraud anonymously. Eventually, they have to reveal who they are to the federal government. However, the government is usually pretty good about keeping the whistleblower’s identity a secret.

Things get a bit riskier if the whistleblower decides they want a financial reward.

This requires them to begin a qui tam action and serve as a relator. During the initial stages of litigation, the whistleblower is safe. This is because the complaint in a qui tam is “under seal.” That’s just a fancy legal term for keeping it secret. It also means the fraudster does not find out about the qui tam action until later on in the case. If the fraudster doesn’t know someone tipped off the federal government, it’s hard for them to retaliate.

The purpose of this secrecy is to allow the government time to investigate the alleged fraud.

The secrecy period lasts for at least 60 days. But it will often last longer because the federal government needs more time to investigate the scam. And it’s pretty easy for the government to ask and obtain an extension.

But eventually, the investigation ends and the court removes the “under seal” case status. The fraudster is now likely to discover who the whistleblower is. They might retaliate against them. But sometimes, the fraudster can figure out ahead of time who the whistleblower is. Luckily, there are special anti-retaliation protections in place.

False Claims Act Protection #2: Prohibition on Retaliation

It is illegal for an employer to harass, bully, fire, threaten or otherwise retaliate against a whistleblower. If the employer retaliates, then they may have to reinstate the whistleblower and pay damages. They include back pay, attorney’s fees and interest.

This sounds great, and it is, in theory. But the reality is not as great because it’s not always easy to prove retaliation. A clever employer can disguise a retaliatory firing. They can make up performance-related reason that has nothing to do with whistleblowing.

Another problem is that even if the employee wins his or her retaliation case, do they really want to go back to the same job? The monetary damages they receive are usually not enough to make it worth the hassle or aggravation of retaliation.

Despite its drawbacks, the anti-retaliation provisions of the False Claims Act are better than nothing. They can alleviate some of the pain of being a whistleblower or prevent retaliation from taking place.

Are You Thinking About Being a Whistleblower?

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What Can I Expect to See from Healthcare Whistleblower Claims?

Whistleblower claims in the healthcare setting are unique. Here’s what you need to know.

whistleblower claimsGiven the size and importance of the healthcare industry, it’s no wonder that it has its fair share of whistleblower claims. Medical services cost a lot of money and many people need them. In fact, it’s almost a certainty that you and everyone you know will utilize healthcare services at some point in your lifetime. With so many people needing in healthcare and the massive amount of money involved, it’s inevitable that fraud will take place.

Here is a list of some of the things you can expect to see in healthcare fraud claims:

Lots of Money at Issue

Healthcare makes up a huge part of the United States economy. In fact, the Centers for Disease Control and Prevention estimates that healthcare amounts to $3 trillion of the United States economy. A lot of money changes hands with all the government programs, insurance companies, medical providers and healthcare companies involved. All of this means that a healthcare whistleblower should expect to see a lot of money at stake. This is good in that it can mean a larger qui tam reward. But it’s bad in that it means guilty parties will spend more time and effort fighting allegations of fraud.

Kickbacks

A kickback is a special payment one party makes to another as compensation for an improper benefit. One reason for kickbacks in the American healthcare industry is how insurance companies work. For many patients, they cannot receive specific medical care unless they first get a referral from another medical professional. For instance, if you want to see a neurologist, you may have to first see your primary care physician, who will then provide you a referral to see the neurologist.

In a perfect world, your primary care physician will refer you to a neurologist who will do the best job possible in treating the medical issue involving your brain. But with kickbacks, a sleazy neurologist may provide payments to primary care physicians to send patients their way even though the patients should be going to someone else. The payments the neurologist provides the primary care physician would be a kickback.

Upcoding

In the medical world, special codes exist to refer to specific procedures, tests and services. So instead of the bill spelling out the exact procedure, a special code takes its place. This can streamline billing. But it can also provide an opportunity for fraud. Fraud can occur when someone in the medical billing department uses a code for a more expensive medical procedure or service. Upcoding is simply a way for a healthcare provider to charge a higher price for a given service.

Unbundling

Like many other things you purchase, medical services can come cheaper if you buy them as a part of a package deal. So a hospital might charge $200 for an X-ray and $600 to set a broken bone. Billed separately, the total is $800. But by bundling these procedures that often occur together, the hospital might only charge $700. Unbundling occurs when the hospital separates the two services and charges the hypothetical $800 instead of the $700.

Fake Patients

Some doctors, hospitals and clinics get really bold in their fraud attempts. Sometimes they will simply make up a patient and bill the government or insurance company for medical care that did not take place because the patient didn’t exist. A slight variation of this fraud technique is to have a real patient, but bill the insurance company or government for nonexistent medical care. For example, a patient might have gone to the emergency room for a really bad headache and received only an MRI. But the hospital not only bills the insurance company for an MRI but a CT scan as well.

Unnecessary Medical Procedures

Unnecessary medical procedures are widespread in healthcare fraud because they are hard to prove, let alone detect. An unnecessary medical procedure is exactly what it sounds like. But discovering it is difficult because it’s hard to know if something is unnecessary. Using the previous example, a patient complaining of a headache may have a migraine where one dose of a certain medication will make everything just fine. Despite knowing this, the doctor orders an MRI scan, “just to be safe.”

In this hypothetical, it’s hard to know if the MRI scan was unnecessary. Even if someone reviewing the medical records believes something is unnecessary, it may be impossible to prove. The only way to prove it will be for the doctor who requested the MRI to admit they ordered a medically unnecessary test. And the chances a doctor will admit to something like that is practically zero.

Want to Discover More about Fraud in the Healthcare Industry?

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How the Department of Justice Determines the Validity of Whistleblower Cases

Determining if whistleblower cases have merit is an important job of the Department of Justice.

whistleblower casesIn all whistleblower cases (also known as qui tam actions), the Department of Justice has a decision to make. Even though a private citizen brings the qui tam action and not the United States government, the DOJ will have the option of joining the case and pursuing a financial recovery from the alleged defrauder. In many situations, the DOJ joins, but sometimes it doesn’t. When it doesn’t, the private citizen (called a relator), can usually continue to pursue the qui tam action independently.

The Department of Justice may take steps to dismiss the relator’s case and stop the qui tam action from continuing. But what exactly makes the Department of Justice conclude that a qui tam action isn’t valid? And what would make the DOJ believe the qui tam action should end as soon as possible?

Legal Arguments or Facts Are Frivolous

What if the Department of Justice concludes the legal or factual basis for the qui tam lawsuit is frivolous? Then they will conclude it is a meritless case. At the very least, the DOJ will decline to intervene. In some instances, they may actually try to end the qui tam action. For example, imagine if a relator believed that former President Obama wasn’t legally the President of the United States and therefore, all his actions were violations of the False Claims Act. In this situation, the DOJ would not join the relator’s case and would likely try to dismiss it.

The Qui Tam Action Overlaps with Another Investigation

Federal law is clear in that a relator may not bring a qui tam action regarding a particular fraud if there is already a qui tam action pending concerning that specific fraud. But what happens if a qui tam action concern facts and fraudulent activity that the Department of Justice or United States government is only investigating? In this situation, the DOJ will question the usefulness of the qui tam action and will probably either decline to intervene or try to dismiss the case.

The Whistleblower Case Jeopardizes National Security

The False Claims Act commonly involves defense contractors that produce products and provide services for the United States military. If a qui tam action threatens the military’s ability to continue obtaining a certain weapon or technology, the Department of Justice may choose not to help the relator.

The Relator’s Case Complicates the Department of Justice’s Goals

If a qui tam action has the potential to complicate the Department of Justice’s legal mission, it may view the relator’s case as lacking merit. For example, if the relator’s case has the potential to create case law that makes it harder for the DOJ to win another case, then the Department of Justice may try to dismiss the relator’s qui tam case or at the very least, not join it. This sounds contradictory, but a bit of background can help clear things up.

In the United States, the “law” is more than just statutes written in a book. It also includes court decisions (commonly referred to as case law). It interprets that law and provides further details as to what the law means. A federal statute might say “employment discrimination on the basis of race is illegal.” Does that prohibit racial discrimination of a job applicant who is not yet an employee? When a court case answers that question, it creates case law.

When it comes to racial discrimination, federal law exists not just in the statute, but that particular court decision. Therefore, understanding the law involves not just reading statutes, but court decisions as well.

Should a court come down with a decision that explains the law in a way that the Department of Justice doesn’t like, it will do what it can to prevent that from happening. If a relator brings a qui tam case that creates case law that goes against the DOJ’s mission, then it may take the position that the relator’s case lacks merit.

The False Claims Act Lawsuit Involves Classified Information

If the qui tam action involves the disclosure of classified information, the Department of Justice will probably try to prevent the exposure. In this situation, the Department of Justice may decline to intervene. Or they may take steps to make the relator lose his or her case.

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