Whistleblower Retaliation: Your Rights & Protections in the US
Whistleblower retaliation happens all the time in the highest forms of government and corporate America. Retaliation occurs when an employer takes adverse action against an employee after they report fraud or misconduct to a superior. This often means termination, harassment, change of job responsibilities, and other forms of “creative” punishment and psychological torment.
Many whistleblowers are completely surprised by their superiors lack of corrective oversight when they blow the whistle. And most are unaware of the various laws that protect them. Thus, it is important for whistleblowers to first evaluate the risk of reporting fraud or misconduct. They should also spend time understanding their rights before taking action, as retaliation is the most likely outcome.
Below is a brief guide to help you understand whistleblower retaliation and protection yourself.
- Avoid hotlines or internal reporting! Many of these methods are designed to help the company – not the person reporting misconduct
- Keeping quiet and collecting evidence of fraud or misconduct, then reporting with help of an attorney is advised
- All whistleblower laws have a statute of limitation, which has deadlines between 30 and 180 days for filing complaints
- There are nearly 50 laws permitting job protection or permitting you to obtain financial rewards governing almost every type of whistleblowing
Preventing Whistleblower Retaliation
The best way to prevent retaliation is for your company not to know who you are. If you have information of fraud or misconduct, it’s advised you keep the information to yourself. The next step is to contact a whistleblower retaliation attorney for legal assistance before engaging in protected activity.
Retaliation happens when an employee decides to engage in an activity protected by whistleblower protection law(s), such as reporting a violation of law. Furthermore, it can occur if an employer knew about, or suspected, that the employee engaged in the protected activity.
There is a long history of employees suffering retaliation after disclosing internally. And many whistleblowers have not been guaranteed protection from superiors who take offensive action. It’s crucial for whistleblowers to recognize what retaliation looks like in order to avoid, prevent, and stop it from happening.
Whistleblower Protection Laws
The laws for whistleblowers are all different and vary, depending on the agency and sector. Federal and non-federal whistleblowers can rely on laws, statutes, and legislation to protect themselves while filing for rewards and damages.
Each law may have their own reward programs or provisions for damages resulting from whistleblower retaliation. It all depends on your case and sector. Most whistleblower reward programs provide an approximate mandatory reward of between 10% and 30% of the sanctions collected.
Whistleblowers may also file a separate complaint for damages. This may include reinstatement, back pay, payment for lost benefits, special damages, attorney fees, expert witness fees and costs. Front pay may also be available, as well as damages for loss of reputation or emotional distress.
The Whistleblower Programs
- Securities and Exchange Commission (SEC) Whistleblower Program – this Program rewards whistleblowers and prohibits retaliation against employees who provide information about possible securities violations
- Commodities Futures Trading Commission (CFTC) Whistleblower Program – this Program rewards and protects whistleblowers who report violations of the Commodity Exchange Act. Violations include spoofing, illegal use of swap and offering other complex derivatives to retail investors
- Internal Revenue Service (IRS) Whistleblower Reward Program – this Program rewards and protects whistleblowers and who report tax fraud and money-laundering
Other Whistleblower Laws
- False Claims Act – the law the protects and rewards government contracting fraud whistleblowers. There are also several state whistleblower laws with separate anti- whistleblower retaliation provisions and rewards
- Dodd-Frank Act – the law that protects, rewards, and encompasses whistleblowers of securities and commodities fraud. Rewards are paid through the SEC Whistleblower Program and CFTC Whistleblower Program
- Sarbanes-Oxley Act – the law that protects whistleblower disclosures about violation of SEC rules and regulations, or other violations of federal law. Like most others, law also includes whistleblower retaliation provisions
- Whistleblower Protection Act – the law that protects federal employees who disclose Government waste, and corruption. It also protects them from adverse consequences related to their employment
- Anti-Money Laundering Act – includes an anti- retaliation law that requires cases to be filed with the U.S. DOL within 180 days of an adverse action. Until congress fixes the AML Act’s provisions, AML whistleblowers are strongly advised to look at other reward laws
- Occupational Safety and Health Laws (OSHA) – administered by the Department of Labor, OSHA administers the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Affordable Care Act (ACA) and approximately 20 other whistleblower statutes. These statutes protect whistleblowers and workplace safety, with time limits for filing ranging from 30 days to 180 days. Understanding how to use the DOL rules to your advantage is the key to a successful federal whistleblower employment discrimination case
If an employer retaliated against you, we advise you to immediately obtain legal counsel from a whistleblower attorney. All whistleblower laws have a statute of limitation, which sets forth deadlines for filing complaints. Some deadlines are short as 30 days; others are three years or more. What you blow the whistle on and the method you use to make your disclosure will determine your rights going forward.
Reporting Fraud and Avoiding Retaliation
You may choose to blow the whistle on your own using free legal resources, such as Rules for Whistleblowers: A Handbook for Doing What’s Right (Lyons Press 2023). However, for all federal and non-federal employees, blowing the whistle can be complex. Filing whistleblower lawsuits should be done with the help of an attorney.
An attorney can determine which of the aforementioned laws or reward programs are applicable to your case. This will help improve your chances of receiving an award and also protect you against whistleblower retaliation. Before going to the authorities, we urge whistleblowers to secure their communications and electronic devices to protect their identity. Below are a few security tips you may want to consider when preparing to blow the whistle:
General Whistleblower Tips
- Do not use devices owned by the government or your employer
- Use a device that is not linked to you personally
- Do not use your home or work internet network
- Create alias communication accounts (use fake names for email, social media, messenger, etc).
- Do not engage in activities which could identify you when sharing information, such as checking email, social media, online shopping, etc.
- If you do not feel comfortable reporting on your own, work with an NGO or attorney to make the report
- Use Protonmail and its associated VPN to communicate via email
Using a Mobile Device
- Use a mobile device that has been purchased only for whistleblowing purposes. It should not have any personal contact data, photos, or other information on it. Even more secure is a phone that is unconnected to your identity, such as a pay phone
- Before using any mobile device, turn off all tracking and Bluetooth features and close all active applications
- Use anonymous internet browsers such as Tor, Orwall, Orbot, or Orweb, to make the report on your mobile device
- For text messaging purposes, use encrypted applications such as TextSecure, Silent Circle, or Threema
Using an Internet Cafe or Public Wifi
- Check to make sure that the location does not require a valid identification before letting you use a computer or internet
- Download the Tails operating system or the Tor browser bundle to a USB drive. Use these tools when at an internet cafe, even if using a personal computer
- Make sure no one can walk by and see your computer screen without your noticing them
- Log out of all accounts and remove all devices and software after using a computer at an internet cafe
Kohn, Kohn & Colapinto has set precedents in many whistleblower retaliation (and non-retaliation) cases. We’ve established strict rules prohibiting settlement agreements restricting the right of employees to make reports to government regulators.
Our whistleblower retaliation attorneys have advocated for key reforms protecting employees to be included in the Whistleblower Protection Enhancement Act and have recommended provisions that strengthened whistleblower protections for corporate employees to incorporate into the Dodd-Frank and Sarbanes Oxley Acts.
If you’ve been retaliated against, get in touch with our firm for a free and confidential case evaluation. Our team can help you understand your rights and provide you with an overview of the federal and state whistleblower laws applicable to your case. A founding partner does review every intake form received. If KKC agrees to represent you, one of our founding partners will manage your case.
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Frequently Asked Questions
Examples of whistleblower retaliation include firing or laying off, demoting, denying overtime or promotion, or reducing pay or hours. This might also include more subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance.
The best way to prevent whistleblower retaliation is if the company is unaware of the whistleblowers identity. This means whistleblowers should keep quiet and work with a whistleblower attorney to submit claims, file for rewards, and help investigators.
Most of the modern whistleblower laws have provisions that protect whistleblowers against retaliation, including the SEC, CFTC, IRS, FCPA, FCA, and SOX, among others. Those who violate the anti-retaliation provision, or seek to impede reporting can be fined thousands of dollars.
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