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What Is Whistleblowing and What Are the Risks?

what is whistleblowing

what is whistleblowingIf you’ve been asking, “ What is whistleblowing? ” here’s the definition straight from Merriam-Webster: An informant who exposes wrongdoing within an organization in the hope of stopping it.

At a high level, this seems straightforward; a moral obligation even. But before you go forward with a qui tam lawsuit (aka- whistleblower lawsuit), it’s a good idea to understand your legal protections, and their limitations.

Anti-Retaliation Protection

Within the False Claims Act is a specific anti-retaliation clause that (in theory) protects potential whistleblowers from employer retaliation “because of lawful acts done by the employee…in furtherance of an action.” This includes protection from being fired, suspended, demoted, or otherwise harassed, and applies whether or not a lawsuit has actually been filed.

However, to avail yourself of this clause, the employee must prove the action taken was a result of an employee participating in an FCA action, that the employer knew about the action, and the employer then discriminated against the employee as a result. If you can prove retaliatory discrimination or other adverse action, your employer is liable for damages. They must also reinstate you, and return your employment conditions to their original state.

Other Items to Consider If You’re a Whistleblower

While legal protection is helpful, there are other ramifications you may want to consider when determining whether or not to bring a qui tam lawsuit.

  1. You can still lose your job. Yes, you are protected by the anti-retaliatory provision. But you’ll have to take that case to court, and win, based on proof. Sometimes employers can successfully fire an employee for an unrelated, but justified cause. It can be as simple as stealing a pen which, in theory, is company property.
  2. You’re blacklisted. While most prospective employers should be thankful you’re honest, it doesn’t always work out that way. Even companies with nothing to hide may be reluctant to hire you, which can make it quite difficult to secure an equal job in the future. If you’re in a well-connected industry, such as defense contracting, this can be especially difficult.
  3. You may face legal consequences. If you were an active participant in the original crime, you may be found liable for any criminal charges filed after the lawsuit. True, you may receive a lighter sentence; but if you think you’re likely to face punishment as a key piece of the fraud being perpetrated you’ll have to factor it in to your decision.
  4. You potentially violate professional and contractual obligations. While the impact isn’t strictly legal, you could still face a civil suit or stiff fines. Non-disclosure and secrecy agreements can be quite binding, especially in industries that rely on confidentiality (i.e. defense contractors).

All of these are potential items to consider when deciding whether or not to file a qui tam lawsuit against a defense contractor or healthcare provider. When weighing the pros and cons, it’s best to engage legal counsel who can talk you through your risk of exposure, impacts, and potential mitigation strategies you have available.

Looking for Experienced Legal Counsel before Making a Decision?

Contact Bothwell Law Group today. Get a better understanding of what whistleblowing is, and identify any potential consequences by calling 770.643.1606.