If you are planning on blowing the whistle, you’re probably wondering “Do I have rights?” and “Am I protected?”
The answer is yes, but your protections vary based on the type of whistleblower case you have.
Protection From Retaliation
1. False Claims Act
The False Claims Act protects whistleblowers from retaliation such as being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action” under the False Claims Act. In other words, an employer cannot retaliate against an employee for internally reporting fraudulent activities, investigating the possible fraud, and/or taking steps to remedy or stop the fraudulent activities.
If you have been retaliated against, you can choose to file a retaliation claim in conjunction with your False Claims Act qui tam case, so long as you do so within three (3) years of the date when the retaliation occurred.
In support of your retaliation claim, you must show that (1) you engaged in protected activity in furtherance of a False Claims Act action; (2) your employer knew about these acts; and (3) your employer discriminated against you because of such conduct. If all this applies, you may be entitled to retaliation relief, which includes:
- reinstatement with the same seniority status that you would have had but for the discrimination,
- two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.
2. The SEC Whistleblower Program
The Dodd-Frank Act has an anti-retaliation provision to protect whistleblowers who provide information to the Securities and Exchange Commission (SEC). This anti-retaliation provision states that:
No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—
- in providing information to the Commission in accordance with this section;
- in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or
- in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), including section 10A(m) of such Act (15 U.S.C. 78f(m)), section 1513(e) of title 18, United States Code, and any other law, rule, or regulation subject to the jurisdiction of the Commission.
Whistleblowers who believe they have been retaliated against must file an action in federal court within 6 years after the date of the violation, or within 3 years after the date material facts were known or should have been known to the complainant, but in no event more than 10 years after the violation occurred.
Relief for an individual prevailing in an action brought under the Dodd-Frank Act anti-retaliation provision, includes—
- reinstatement with the same seniority status that the individual would have had, but for the discrimination;
- 2 times the amount of back pay otherwise owed to the individual, with interest; and
- compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.
1. False Claims Act
A False Claims Act case is filed under seal, which means that the case is not available to the public until a judge orders it. This means that the whistleblower’s identity will be protected for a period of time, often lasting several years.
If, after its investigation, the government decides to intervene in the suit and a settlement is reached, the Department of Justice will issue a press release and the whistleblower’s identity will become public. If the government declines to intervene and the whistleblower decides to pursue the case, the case will be unsealed and the whistleblower’s identity will become public. If the government declines to intervene and the whistleblower does not continue with the case, the whistleblower may file a motion with the court asking to have his or her name withheld from the public record; such a motion’s chances of success depend in part on the potential retaliation the whistleblower might face from public disclosure.
2. SEC Whistleblowers
The SEC will not disclose the name or identifying information of a whistleblower, except when there is litigation and the whistleblower must be called as a witness. Alternatively, through an attorney, a whistleblower can submit a report to the SEC completely anonymously.
3. IRS Whistleblowers
The IRS whistleblower program offers anonymity to those who step forward to report illegal schemes and tax violations. A person’s identity is securely protected by law from the moment a case is presented to the IRS through the examination process. If, however, the decision is appealed to the United States Tax Court, individuals may be called as witnesses in a public proceeding.