Polish law permits all citizens to report frauds against the U.S. Government under the False Claims Act, or violations of the provisions of the Securities & Exchange Act, Foreign Corrupt Practice Act, or Commodities Exchange Act.

Current Status of Poland’s Whistleblower Laws

What disclosures are currently protected?

Poland does not currently have a comprehensive national whistleblower law. It does, however, have a patchwork of whistleblower laws that allow the reporting of certain types of misconduct internally and to regulators:

Polish law, however, does not include any meaningful provisions to protect a whistleblower’s identity (and provisions that do exist may be overruled if it is in the public’s interest, or breached without consequence). Additionally, there are no reward provisions for successful whistleblowers in Polish law and law enforcement and government agencies in Poland still lack comprehensive whistleblower programs. Therefore, whistleblowers may be better off reporting to U.S. regulators, at least until the transposition of the Whistleblower Directive is complete.

Can Polish whistleblowers receive rewards?

There is no law in Poland providing whistleblowers rewards, however, they may receive rewards through U.S. laws.

Recent updates or future legislative developments

Poland is required to implement the provisions of the Directive into its national law. However, it has not yet announced that it has begun this process.

Can/should Polish whistleblowers report to U.S. officials?

No law in Poland currently prohibits Polish citizens from reporting frauds against the U.S. government under the False Claims Act, or violations of provisions of other statutes including the Securities & Exchange Act, Foreign Corrupt Practice Act, or Commodities Exchange Act. Therefore, Polish whistleblowers can and should report relevant violations to U.S. officials under these laws.

Introduction for Whistleblowers in Poland Using U.S. Laws

An overview of the whistleblower protections in the United States

The United States has over 50 separate whistleblower laws, and they each define a protected disclosure separately. 

The most comprehensive and widely used U.S. laws offering whistleblowers significant protections are the False Claims Act, the Dodd Frank Act, the Commodities Exchange Act, and the Internal Revenue Code

These laws all provide various degrees of anonymity, confidentiality, and rewards and cover a myriad of common legal violations.

Protection and anonymity under commonly used whistleblower laws

The False Claims Act permits a whistleblower to file his or her original complaint without revealing his/her identity to the public or a would-be defendant. However, after the government concludes its investigation as to the subject of the complaint, in most cases, the complaint is made public.

The SEC Whistleblower Program (created by the Dodd Frank Act), which includes fraud under the Securities Act of 1933 and the Securities and Exchange Act of 1934, and bribery under the Foreign Corrupt Practices Act, allows for anonymous and confidential filings with the SEC. The Similarly, the Commodity Futures Trading Commission’s Whistleblower Program allows for confidential and anonymous filings. Both programs have significant safeguards in place to protect confidential whistleblowers from detection and retaliation. 

The IRS whistleblower program, which covers tax frauds, underpayments, and money laundering does provide that whistleblowers’ confidentiality will be protected to the maximum extent permitted by law but does not permit anonymous filings.

Federal employees also can follow rules for confidentiality under the Inspector General Act and other laws.

Examples of what to do or not do to ensure you are protected as a whistleblower under U.S. law

Every whistleblower program discussed in the prior section has its own explicit rules that whistleblowers must follow to maintain anonymity and confidentiality and to preserve their claims. However, there are also a set of “unwritten rules” in Kohn, Kohn & Colapinto’s experience for whistleblowers who want to make sure that their identity and status as a whistleblower are fully protected. 

For example, we recommend only reporting to U.S. regulators and against reporting internally as made clear by the Danske Bank Whistleblower Case. In that case, Howard Wilkinson did everything right in reporting up the internal chain of command. However, despite “internal controls” his identity was ultimately leaked by Danske in retaliation

We also recommend finding an attorney familiar with whistleblower law as soon as possible, before making any disclosures, and only reporting to agencies with strict whistleblower protection guidelines based on for example our experience working on Bradley Birkenfeld’s case. Before retaining Kohn, Kohn & Colapinto, LLP, Mr. Birkenfeld voluntarily provided information about tax fraud directly to Justice Department prosecutors who did not consider him a “whistleblower.” As a result, these prosecutors filed charges against Mr. Birkenfeld, and he was sentenced to a term in jail for participating in the fraud he was blowing the whistle on. After this misstep, he retained Kohn, Kohn & Colapinto, LLP through which he correctly filed his IRS whistleblower claim. His disclosure and cooperation with U.S. authorities began the dismantling of the historical secrecy of Swiss banks and, as of 2018, more than 56,000 delinquent taxpayers had come forward, and the IRS had collected $11.1 billion in back taxes, while numerous banks were successfully prosecuted or entered into settlement agreements with the U.S. government. The total amount of revenue generated from the U.S. government’s use of whistleblowers in detecting and prosecuting illegal Swiss banking is estimated at $16.19 billion. 

The majority of Kohn, Kohn & Colapinto, LLP’s current and former clients remain anonymous and confidential, including non-U.S. whistleblowers from numerous European countries, such as France, Greece, Germany, Russia, Serbia, Spain, Switzerland, and the United Kingdom, some which do not offer confidential and anonymous reporting and are known for allowing retaliation against whistleblowers. However, our expertise in the written and unwritten laws have allowed us to continue to protect these clients.

Reporting Concerns: What You Need to Know

Reporting under the Directive

Under the new Whistleblowing Directive there are three tiers of protected reporting, which will be implemented in every state party: reporting internally, reporting to government authorities, and reporting to the public (i.e. going to the press).

Under the Directive, whistleblowers are not required to report internally before reporting to the relevant government authorities. However, in order to “go public” whistleblowers must have first reported either internally or to government authorities and no appropriate action was taken or else have reason to believe that either there is an imminent or manifest danger to the public (i.e. a public emergency), or that there is a high risk of retaliation and a low prospect of the violation being addressed due to the particular circumstances of the case (such as where a public authority is in collusion with the violator).

Reporting under the U.S. law

Disclosing information internally to a prescribed person and the likely response

In the U.S. whistleblowers may similarly report internally and may be protected by statutes such as the Dodd Frank Act/Sarbanes Oxley as well as state anti-retaliation laws. However, there is a well-established history of employees suffering retaliation after disclosing internally, and in such cases litigation is often long and costly, and corporations often win. Whistleblowers should contact a whistleblower or employment attorney before making an internal report to discuss its advisability and properly document and escalate any internal report.

Disclosure to public officials

Whistleblowers may also report through the whistleblower offices of various agencies and remain confidential and anonymous and thereby avoid retaliation as discussed above. This is the best option for whistleblowers in most cases. Contact a whistleblower attorney to identify the best agency to report violations to and the best procedure for making a report.

Disclosure to an external person (e.g. journalist, media, public forum)

Lastly, whistleblowers who go to the media in the U.S. largely do so at their own risk, although certain First Amendment protections may apply. Neither journalists nor confidential informants have a recognized privilege to remain confidential. The First Amendment of the U.S. Constitution can provide some protection from government intrusion for the information you communicated to a journalist, but these protections are not absolute and a corporate defendant may still seek your identity in a civil proceeding. There may be strategic reasons to go public with information, however, whistleblowers considering such a step are advised to consult a whistleblower attorney first.