What is a Whistleblower?

Are you a whistleblower? If you have spoken out against wrongdoing, or want to do so, you have the bravery and integrity it takes to be a whistleblower.

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People often ask me, “Who is a whistleblower?” We commonly refer to whistleblowers as people who have the courage to step forward and report serious wrongdoing. And then people will ask me, “Well, what is whistleblower law about?” Well, whistleblower law is just basically a panoply of laws that protect those people, the people who do come forward and report wrongdoing.

A lot of people think the first real whistleblower law in this country was the First Amendment to the United States Constitution. After all, that law protects your right to free speech. But the problem for whistleblowers is that nobody particular likes it when they are the subject of a report of wrongdoing. So Whistleblowers face retaliation, they face all kinds of punishment at the workplace, they often are castigated and lose their jobs.

The most important thing is to know is your rights. Some people act before they learn what their rights are under whistleblower law and that can be very dangerous. You may be entitled to rewards, you may be able to sue for retaliation. You should always get counsel before you act to blow the whistle or, if you have already done so, get counsel immediately. Knowing your rights is the most important factor under whistleblower law.

The urge to identify and stop those who take advantage of the government, and others, is natural. Acting on that urge, however, requires one to muster serious courage in the face of threats of retaliations and other risks associated with being a whistleblower. Individuals and organization who are most likely to be affected by a whistleblower coming forward are also likely to have powerful influences and resources at their disposal to block any efforts to shed light on their nefarious practices. That, in turn, leaves the whistleblower in an extremely vulnerable position. Most are forced to act against these powerful entities — often their own employer — on their own. This is why whistleblowers need and are granted certain protections under the federal False Claims Act and similar whistleblower laws.

Determining those who legally qualify as whistleblowers, however, can be quite complicated. There are not only the federal and state False Claims Act laws, but several other laws or provisions designed to protect whistleblowers reporting fraudulent schemes and abuses through a number of government agencies. These include:

  • The Securities and Exchange Commission (SEC)
  • The Commodity Futures Trading Commission (CFTC)
  • The Health Care Fraud and Abuse Control Program (HCFAC)
  • The Dodd-Frank Act
  • And the Internal Revenue Service (IRS).

Each law or provision has its own requirements and courts may interpret different laws in different ways. Therefore, determining whether or not a person qualifies for protection under one of these laws or programs takes a fair amount of legal acumen and experience.

The History of Whistleblower Laws

Some attorneys like to make the argument that the foremost whistleblower law is the First Amendment to the U.S. Constitution.  The right to free speech and a free press can provide protection to people who want to come forward and provide information about a variety of wrongdoings and offenses. Since the First Amendment is enshrined in the Constitution, it provides support for many additional whistleblower laws.

what is a whistleblowerWhile not as old as the First Amendment, but certainly old by our standards, is the Federal False Claims Act (pdf). See 31 U.S. Code Sections 3729-3733.  The Civil War-era law has undergone many amendments since being enacted in 1863, but it now works as it was intended and has proven to be the single most successful effort by Congress to combat fraud against the U.S. government and the American public. The FCA makes it possible for individual whistleblowers to fight fraud committed against the government via qui tam provisions. These provisions are a special right that allows citizens to sue on the government’s behalf and obtain part of the damages recovered as a reward. The phrase qui tam is derived from Latin and translates to “he who acts on the king’s behalf as well as his own.”

Whistleblower Protections

The current version of the federal law and virtually every state FCA law also provides protections for individuals who face retaliation for fighting fraud. Most state anti-retaliation provisions are modeled on the federal law, which gives the whistleblower the right to file a claim if they are reporting or fighting fraud that was committed by another individual or entity against the government. Currently 29 states, and the District of Columbia, have False Claims Acts of their own.

Prior to filing a false claim case, the whistleblower generally should notify the government in order to preserve their status as an “original source.” The case is then filed in court under seal, which means that the whistleblower’s actions and identity will not be made public for an initial period of time. The whistleblower then formally serves the government with the complaint and all the supporting evidence.

If, for example, the whistleblower has information about a national fraud scheme, they may be able to file a consolidated claim. This involves filing claims with the affected state(s) and federal governments. The consolidated action is filed in federal court and will cover both the state and federal claims. See Federal False Claims Act 31 US Code Section 3732. Of course, any whistleblower should speak to an attorney and work with an attorney to be sure he or she follows all the appropriate procedure. Disclaimer – Not Legal Advice. For more information, visit our Whistleblower FAQ section.

In His Own Words

Tony Munter answers questions about:

Also, Tony Munter recently started the new Tony Munter Whistleblower Attorney Transparency Scholarship (Scholarship Application.pdf). More information here.