Reporting fraud is a little bit safer when there are laws protecting whistleblowers.
If there are laws protecting whistleblowers, then it’s more likely you will have people blowing the whistle on fraud and other improper behavior. This is because becoming a whistleblower can be very dangerous, both physically and for the whistleblower’s career. Therefore, before someone steps forward to report wrongdoing, they will want reassurances that they will have protection. Or they at least want to have a legal remedy if they suffer retaliation. The following is a discussion of the whistleblower protections provided by the False Claims Act.
The Necessity of Whistleblower Protections
When a person decides to be a whistleblower, they expose themselves to risk. There is the potential for retaliation from coworkers, bosses, and anyone else adversely affected when the fraud can no longer occur. This retaliation can take many forms, including professional actions like firings, pay cuts, disciplinary action, and demotions. But it can also be outside of work, such as harassment at home, online bullying, and physical violence.
To help reduce the chances of this retaliatory harm from occurring, the False Claims Act has a few protections for whistleblowers. Each of these has moderate levels of success.
The best way to avoid repercussions as a whistleblower is to keep the identity of the whistleblower a secret. After all, how can a boss fire the “snitch” employee if the boss doesn’t know who the whistleblower is? The primary way the False Claims Act maintains secrecy is to allow the relator (who is usually the whistleblower) to file the qui tam complaint under seal. This means that the defendant does not know that a lawsuit is now pending.
But this secrecy ends when the Department of Justice ends its investigation into the alleged fraud. Assuming the person or company committing the scam doesn’t already know who the whistleblower is, they will now, because they will receive a copy of the complaint. And it’s fair to assume that the defendant will be very angry. They may be upset and work very hard to identify the whistleblower. Depending on the fraud, the organization where the fraud took place and those involved, it may be tough to figure out who the whistleblower is.
Most of the time, the defendant will figure out who the whistleblower is before trial. The can eventually connect the dots. By using simple logic and asking around the office, they will have a good idea who the whistleblower is. But even if they never figure out it themselves, they probably will in court during the trial. This is because most likely, the relator will play a role.
So the secrecy provides some protections, but many defendants can still figure out who the whistleblower is. And even when they can’t, the defendant will almost always find out who the whistleblower is during the trial.
The False Claims Act has specific provisions in place that prohibit employers from retaliating against a whistleblower. Forms of prohibited retaliation include bullying, harassment, threats and other adverse employment actions, like firings. Should retaliation take place, the whistleblower is eligible to receive his or her old job back, back pay, attorney’s fees, and interest. This sounds great, but it’s not the best protection for a whistleblower for several reasons.
First, the whistleblower must prove the employer engaged in retaliation. This is not always easy to do. A slick employer can make up a plausible legal reason for firing or disciplining an employee. That’s true even when the real reason is retaliation for being a whistleblower.
Second, even if the whistleblower wins the retaliation case, the damages they receive usually won’t make up for the fact that they cannot realistically work at their old job again. Yes, they can get their job back. But no reasonable person wants to go back to a position where the employer is just itching for a reason to get revenge.
Third, the worst form of retaliation is usually something that’s almost impossible to prove and for the courts to do anything about: blackballing.
How Does Blackballing Play Out?
Blackballing occurs when the retaliating employer takes steps to ruin the professional career of the whistleblower by preventing them from getting another job in their chosen field. The employer might do this by casually talking to other employers that might potentially hire the whistleblower. The employer will say anything to ruin the whistleblower’s chances of getting a new job. Sometimes it will make up flat-out lies. Other times, it will merely tell the truth. Most prospective employers don’t like the idea of hiring a snitch. Whatever the employer says, it will make it impossible or very difficult for the whistleblower to find another job in a similar industry or field
Do You Need Protection under the Laws Protecting Whistleblowers?
To learn more about the laws protecting whistleblowers, contact the skilled attorneys at Bothwell Law Group by calling 770.643.1606 today.