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How to Protect Your Legal Rights as a Whistleblower and Receive Full Compensation for Your Qui Tam/Whistleblower Case
Good people know what’s right and what’s wrong. But a corporation is not a person; it can’t have a conscience. Instead, a corporation must rely on its employees to act as its conscience. While a corporation is only responsible to its stockholders to show a profit; after all, a corporation is not a charity. So, when an employee sees his or her corporate employer doing something wrong, either violating the law or harming others, that employee has a responsibility as a good citizen and neighbor to speak out. For if the employee remains silent, then the hurtful act of the corporation remains hidden as well. So important is the role of this guardian that the law protects such an employee from harm or retaliation, whether the employee works in government or the private sector. We call this employee a “Whistleblower.”
What is a Whistleblower?
Why a “Whistleblower”? For a very good reason. In 19th Century America, a “whistleblower” was a regular person or law enforcement officer who used his whistle to warn the town of harm, whether it be a crime in progress or a riot. In this way, the people of the community could avoid injury to themselves and their property. Today, we’ve adopted that same term – – Whistleblower — to describe the courageous individual who warns others by reporting the illegal, dangerous or harmful actions of an employer. Such illegal activities could be actions that hurt other people, harm the government, or defraud others.
Just how important are whistleblowers to society? So important that the laws allows whistleblowers to remain anonymous and unidentified during most of the whistleblower litigation process. Whistleblowers also typically receive compensation – – or a “reward” – – for protecting the public.
It Takes Courage to Blow the Whistle on Illegal Corporate Activities
Make no mistake. It takes courage to be the employee who blows the whistle on a company for its unethical or illegal maneuvers, because being caught doing something wrong can be costly to a corporation. After all, a corporation’s job is to make money, not answer for its wrongful acts. So, in the corporate world, it may well be easier to silence whistleblowers by punishing them or threatening them with punishment before they speak out. Such punishment can range from internal pressure from bosses, managers, executives, and other employees to prevent someone from “blowing the whistle.” That creates a hostile work environment, with reprimands, demotion, and perhaps even loss of benefits or firing. The mere threat of suffering an adverse employment action is sometimes enough to have a chilling effect on the employee who knows the company is doing wrong, but believes he or she is powerless to intervene.
And still, there are other employees who are willing to take the risk and “stick their necks out,” no matter what the consequence, to prevent their employer from causing potential injury or possible death; from stopping corporations from violating the law; or preventing corporations from not operating in the best interests of their shareholders.
Retaliation Against Whistleblowers is Illegal
Retaliation for blowing the whistle on unlawful corporate or governmental practices is illegal. If your employer retaliated against you for calling out their illegal practices, Parker Waichman LLP can help you fight back. Parker Waichman’s whistleblower attorneys possess a tremendous amount of experience representing employees who suffered adverse employment consequences for acting as the conscience of the corporation. Parker Waichman’s whistleblower attorneys are well versed in the laws — both federal and state — that protect whistleblowers; laws which reprimand and punish the company for taking revenge against an employee from doing the right thing and acting as the conscience of the corporation.
What are Your Rights as a Whistleblower?
The Occupational Safety and Health Administration, also known as OSHA, enforce some federal whistleblower laws. By virtue of the power granted to OHSA by Congress, OSHA has the authority to investigate retaliation from an adverse personnel action when an employee undertakes a “protected activity.” A protected activity is one in which the employee is exercising their right to complain about a corporate activity, which might be unlawful. It is imperative to note that some states have their own whistleblower protection laws and that other federal statutes contain whistleblower provisions that complement the protections afforded to employees by OSHA. Other specially appointed agencies like the Office of Special Counsel and the Office of the Inspector General also have whistleblower protection powers.
To be more specific, whistleblower laws protect employees in situations when the employee reports illegal activity committed by the company to the appropriate authorities. The definition of employee under federal whistleblower rules is expansive. The term employee describes not only active or current employees, but applicants and former employees as well. For example, a federal agency or private sector employer is prohibited from taking adverse employment action against an employee who refuses to engage in business practices that defraud the government. In other words, the employee has the right to not engage in criminal activity. The employer should not make the employee choose between violating the law and receiving a paycheck. Accordingly, whistleblower laws would protect that employee from reporting the abuse to law enforcement or other appropriate authority, including their employer.
Another example of an employee whistleblower protection would be protection for the employee who reports harassment in the workplace. Harassment can take many forms, including, most notably, sexual harassment, bullying, and mistreatment based upon sexual orientation, age, and race. State and federal laws prohibit employers from punishing employees who exercise their rights to be free from harassment in the workplace.
What is Retaliation Under Whistleblower Laws?
Retaliation can take many forms. Generally, retaliation is any adverse employment action taken as a result of an employee exercising their rights. The following is a non-exhaustive compilation of the possible outcomes associated when an employee exercises their rights:
- Demoting an employee;
- Placing an employee on a “blacklist”;
- Preventing advancement of the employee through overtime work or promotions;
- Unwarranted employee discipline;
- Denying benefits or access to accrued benefits like paid time off;
- Refusing to hire or rehire after a lay-off period;
- Discharge from employment by firing or being laid off;
- Exposure to hostilities in the workplace including intimidation and threats of adverse consequences;
- Reassignment to a position that could prevent or inhibit promotion or career advancement,
- Denial of a raise; and/or
- Reducing pay or cutting hours.
The adverse employment action need not be entirely based on the employee’s exercise of their rights to implicate whistleblower protections. Retaliation may be found where your employer takes an adverse personnel decision against you that is motivated by or is a contributing factor of the employer’s “unfavorable personnel action” against you.
What Do You Have to Prove to Win a Whistleblower Claim?
Typically, the complainant must prove four components, also known as elements, of the whistleblowing laws to be successful. The elements are:
- The employee took an action consistent with their rights as a person, such as testifying in court, reporting a crime, reporting fraud, abuse, or a safety violation
- the employer knew or had suspected that the employee undertook an action
- the employee suffered some adverse employment consequence
- the unfavorable personnel action was either wholly or in part due to the employee performing a protected activity
How Do You Prove an Adverse Personnel Activity?
Adverse personnel activity can be difficult to prove or relatively simple. The ease or the difficulty depends on the facts and circumstances that comprise the individual’s case. The legal requirements as listed above must be satisfied to a fair preponderance of the credible evidence for the victim to be awarded damages.
The preponderance of evidence standard is a fairly low standard of proof. It may be as easy as convincing a fact finder, whether it be judge, jury, or Merit Ratings Board for a federal employee or equivalent state agency for a state employee, that the allegations are more likely true than not. Most often, the preponderance of the evidence standard is stated as the plaintiff must prove the truth of the accusations with 51% certainty. By contrast, the standard of proof the government is required to establish for the defendant to be found guilty of a criminal offense is beyond a reasonable doubt, which is the highest standard of proof recognized in our system of law.
Proof of an adverse claim may take either or both of two forms of evidence. Those types of evidence are described as direct and circumstantial evidence. Direct evidence is a personal observation. For example, if a person watches a manager fire an employee, then that is direct evidence of the event occurring. Direct evidence is useful only when the person who is recounting the event is credible. A factfinder does not have to believe the person just because they say they saw something happen.
Circumstantial evidence is best described by using the mailbox analogy which many judges use in their charge to the jury. It goes something like this: suppose you check your mailbox on your way out the door to work, and you observe nothing inside of it. You do the same when you come home from work and find that there is a letter addressed to you in the mailbox. You know, based on your experience as a human being living in the United States that the United States Postal Services delivers the mail. Therefore, you reasonably conclude based on a permissible inference that the mailman delivered mail to you while you were at work.
Both types of evidence are essential in a whistleblower suit. Direct evidence would come from the victim of the retaliation when they testify about how they were fired after taking action or how they were ostracized at work after they took a protected action. They could have direct evidence that their employer took adverse action against them after blowing the whistle but that is unlikely. Direct evidence in that instance would be the employee’s manager telling the employee or another person that the victim was fired because of the action. Employers are usually much savvier and are aware of whistleblower laws. Consequently, they will be more careful. If that is the case, then the victim must turn to circumstantial evidence to prove the employer’s intent.
Circumstantial evidence is based on logical inferences that are less dependent on the credibility of the witness, although credibility is always an issue. Indirect evidence of an adverse personnel action would be receiving a poor performance review shortly after you blow the whistle on a corporate practice even though your work has not diminished and you have a track record of good reviews. With evidence like that, you can show that your employer knew about your actions and then took steps to retaliate against you for them.
What are the Remedies for a Violation of a Whistleblower's Rights?
The remedies available to aggrieved employees depend on the individual statutes under which the employee seeks protection. Generally, a court or administrative agency will award back pay, incidental damages such as damage to reputation and emotional distress, costs of litigation, and reasonable attorneys’ fees. Additionally, the court or agency can order your employer to reinstate you to the position you had before your employer took adverse action against you as well as fashion any other injunctive relief that is necessary to protect the employee.
Some statutes encourage whistleblowers to come forward. The Dodd-Frank Act contains a provision that encourages individuals to come forward and report violations of the law to the Security and Exchange Commission (SEC). Not only does the Dodd-Frank Act contain the standard whistleblower protections, but a whistleblower who comes forward of their own volition can also receive between 10 and 30 percent of the total amount of sanctions collected by a court or administrative agency for providing information about a violation of the law.
Additionally, the court or agency can order the employer to restore health insurance, retirement plans, and seniority to pre-retaliatory levels or award a promotion if the facts of the case and justice so require. Furthermore, the fact finder can order the offending company or agency to pay punitive damages.
Laws that Contain Whistleblower Protections
U.S. law and individual state’s laws contain whistleblower protections. Therefore, it is impossible to list every law granting whistleblower protection. However, numerous federal laws protect employees from unscrupulous employers, including:
- Dodd-Frank Wall Street Reform, and the Consumer Protection Act
- Asbestos Hazard Emergency Response Act
- Clean Air Act
- Environmental Response Act
- Consumer Financial Protection Act
- Consumer Product Safety Act
- Energy Reorganization Act
- Federal Railroad Safety Act
- Federal Water Pollution Control Act
- International Safe Container Act
- Motor Vehicle safety acts
- National Transit System Safety Act
- Occupational Safety and Health
- Pipeline Safety Improvement Act
- Safe Drinking Water Act
- Seaman’s Protection Act
- Section 402 of the Food and Drug Administration Food Safety Modernization Act
- Section 1558 of the Affordable Care Act
- Solid Waste Disposal Act
- Surface Transportation Assistance Act
- Toxic Substances Control Act
- Ford Aviation Investment and Reform Act
- Title VII protecting against reporting sexual harassment,
- Fair Labor Standards Act
- Civil Rights Act
- False Claims Act
- Other claims involving security clearance, political activity, union activity, and the military
- Whistleblower Protection Act
- Whistleblower Protection Enhancement Act
- States laws include New Jersey’s Conscientious Employee Protection Act, New York’s §740 of the Labor Code, and Florida’s Whistleblower Law §112.3187
The Statute of Limitations for Whistleblower Complaints to Federal Agencies
A statute of limitations protects potential defendants from harm that is too remote in time. The passage of time makes claims difficult to defend because witnesses and evidence could be lost and if the witnesses can still be located, their memories can fade. Therefore, making someone defend against an action after too much time has passed is unjust. As a result, you will forever lose your opportunity to right the wrongs, which have befallen should you allow the statute of limitations to lapse. You must be acutely aware of the statute of limitations that govern some causes of action.
Most of the statutes listed above specify the statute of limitations. Many have an only 30-day statute of limitations while others have 90 or even 180-day statutes of limitations. Some of the laws, like the Dodd-Frank Wall Street Reform Act, have a three-year statute of limitations but can be as long as six years in some situations.
To perfect a complaint before the statute of limitations runs, the victim must file a complaint with the agency in charge of investigating whistleblower violations. The overwhelming majority of the statutes listed above fall within the jurisdiction of OSHA. Whistleblower claims involving securities and stocks should be filed with the Office of Special Counsel or the Merit Systems Rating Board.
Complaints may be filed online or mailed to the proper agency. OSHA allows you to walk into a regional office and make a verbal claim. You should know that most allegations cannot be made anonymously. Once you file the claim with the appropriate agency, then that agency will commence an investigation. The Department of Labor then will determine the remedy for you and get you back to work at the position you deserve.
However, if the agency fails to act within the specified time frame which is typically 180 days, or you are aggrieved by the action because the agency found against you, then you can appeal to the United States District Court that serves your jurisdiction. Additionally, if your employer fails to implement the remedy that the agency ordered, you may also bring suit in the federal court. It is essential to note that you cannot directly file a claim in federal court without first exhausting your administrative remedies. If you do not follow the administrative rules first and file a claim in court, you could lose out on a claim forever because of a violation of the statute of limitations. (See https://www.whistleblowers.gov/statutes)
How Can a Lawyer Help Me?
A Whistleblower lawyer can file a claim on your behalf with any of these agencies. It is in your best interest to have competent counsel assist you. As you can see, the interplay between state and federal law is very complicated. Filing a complaint with the statute of limitations is essential to the viability of your claim.
Therefore, you must contact competent counsel, such as the whistleblower attorneys at Parker Waichman LLP, as soon as you discover a possible violation of any whistleblower act, or you have suffered an adverse consequence at work.
Talking with one of our whistleblower attorneys before you exercise your rights at work is advisable. They can assist you with the necessary preparation before you speak with authorities about the illegal activities in which your employer is engaged. Parker Waichman’s whistleblower attorneys will help you with documenting what has transpired, how to handle it, guide you on what to say, and help you with the possible fallout. Additionally, Parker Waichman’s seasoned whistleblower attorneys will know where to look for evidence of wrongdoing committed by your employer and, most importantly, where to look for evidence that your employer is taking an adverse personnel decision against you because you sought to protect your rights as a conscientious employee.
Two Recent Court Cases Demonstrate the Power of Whistleblower Actions
In July OSHA and the Department of Labor issued a decision against the Wells Fargo bank awarding a former employee over $500,000 in back pay, damages, costs, and fees. The former employee was a branch manager who reported that Wells Fargo employees opened accounts in people’s names who never consented to the accounts being opened. The fact finders in the case determined that the whistleblowing actions of the branch manager contributed to the employee’s discharge.
In another decision out of New York, a judge and jury awarded an aggrieved employee over $170,000 after the employee informed OSHA about unlawful asbestos removal practices in which the employer engaged.
Why Choose Parker Waichman LLP?
Do not just take our word for it. The legal community has spoken, and we proudly have received the following distinctions:
- 8 (out of a perfect 10) Rating by AVVO (a service that rates every attorney in the United States)
- “Preeminent Lawyers” AV Peer Review Rating (Martindale-Hubbell® – a company that, for more than 100 years, has rated attorneys across the United States and the world based on feedback from judges and their peers)
- Highest Ranking of “5 Dragons,” based on peer review by Lawdragon
- Listing in Best Lawyers Publication, determined by Extensive Peer Review
Talk With One of Our Whistleblower Lawyers Today
Parker Waichman LLP will evaluate your claim in a free, no-obligation consultation. Contact our Qui Tam Law Firm today to learn more about how we can protect your rights as an employee if you have blown the whistle on your employer’s unlawful practices. Parker Waichman LLP’s whistleblower lawyers aggressively pursue employers who take adverse employment action against conscientious employees. Contact Parker Waichman LLP today by filling out our online form or by calling 1-800-YOUR-LAWYER (1-800-968-7529) if your employer violated your rights.