Many people contact Swartz Swidler about the information that they have learned about their companies because they are unsure whether they have actionable claims for whistleblower lawsuits. Others also want to know if their provision of information to governmental authorities triggered the prohibition on retaliation against whistleblowers. By understanding the legal definition of a whistleblower and some related terms, our attorneys hope that we can give you a better idea about your case.
What is a whistleblower?
Whistleblowers include people who speak out against wrongdoing within the private and public sectors. Whistleblowers include workers who report legal or ethical violations committed by their employers to governmental agencies as well as those who make internal reports about these types of acts. Whistleblowers may also include non-employees who discover non-public information about the significant wrongdoing of a company and report it to the authorities. Governmental programs for whistleblowers incentivize reports by offering monetary rewards when the reports result in enforcement actions and the recovery of money by the government as a result.
Whistleblowing as a protected activity
Whistleblowing is a protected activity under state and federal law. This means that your employer cannot retaliate against you for blowing the whistle, participating in an investigation, or testifying in court about the company’s wrongdoing. Refusing to violate the law under the direction of an employer is also a protected activity. However, different state and federal laws provide protections for different types of protected activities. This means that you will need to know under which law your action falls to determine whether you are protected.
Prohibition against adverse employment actions
The whistleblower statutes prohibit employers from taking adverse job actions against workers who have engaged in protected activities. These types of actions must be based on the whistleblower’s protected activity and can include the following types of employment actions:
- Terminating the whistleblower
- Demoting the whistleblower
- Reducing the whistleblower’s pay
- Laying off the whistleblower
An adverse job action includes steps taken by the employer that would dissuade reasonable employees from reporting illegal conduct or from participating in investigations.
For the court to find that an employer engaged in retaliation for the employee’s protected activity, it must find that the whistleblowing was a contributing factor to the employer’s adverse job action taken against the worker. Many employers will try to argue that the adverse job action was wholly unrelated to the employee’s whistleblowing. The court will look at whether the employer’s stated reason for terminating the employee was pretextual and the whistleblowing activities were the actual reason. However, courts have found that whistleblowing does not have to be the sole motivating factor for the adverse job action and instead can be a contributing factor to the decision.
OSHA’s role in whistleblower cases
The Occupational Safety and Health Administration plays a crucial role in many whistleblower cases since the agency is tasked with enforcing more than 20 whistleblower protection statutes for employees who report workplace health and safety laws in a broad variety of industries. OSHA’s whistleblower program also handles retaliation complaints in many different industries under a variety of different federal laws.
What qualifies as a whistleblower case?
Whistleblower cases fall under many federal and state laws and are very complex. Because of the length of time that these types of cases can take combined with the in-depth investigatory process, most whistleblower cases involve instances in which employers have engaged in widespread fraud schemes against the government involving millions of dollars. A whistleblower case will also require that the information uncovered by the individual is not publically known. If the information has already been reported by the media or is otherwise public enough for the government to easily discover it, it will not qualify for a whistleblower lawsuit.
Some of the common types of illegal activities that might be included in whistleblower lawsuits include the following:
- Medicaid and Medicare fraud
- Improper referrals and kickback schemes
- Pharmaceutical fraud, including the promotion of off-label uses of drugs
- Government contractor fraud
- Securities fraud
- Insider trading
- Mortgage fraud
- Government pension fraud
- Energy fraud
- Tax fraud
- Disaster relief fraud
Generally, these types of fraud against the government are massive schemes when they form the basis of whistleblower lawsuits.
Incentives for whistleblowers
The government recognizes the importance of whistleblowers. Without people being willing to come forward and report the fraud that they discover, many cases of fraud against the government would never be caught. State and federal legislatures have passed whistleblower laws to incentivize whistleblowers monetarily and to protect them from retaliation. The False Claims Act is a federal law that incentivizes people to report companies that are defrauding the federal government. Actions filed under the False Claims Act are called qui tam cases. People who successfully bring qui tam cases against their companies may receive rewards that range from 15% to 30% of the total amount of money that the government is able to recover through the enforcement action.
Since the FCA was amended in 1986, the federal government has recovered billions of dollars because of the actions of whistleblowers. The FCA’s whistleblower program has also served as a model for other whistleblower laws, and it also contains a provision that prohibits retaliation against whistleblowers. There are also many other state and federal whistleblower laws that offer incentives and similar protections to whistleblowers.
Schedule a consultation with Swartz Swidler
If you have uncovered evidence of a pervasive fraud scheme at your company against the government or other instances of ongoing illegal activities, you may benefit from talking to the experienced whistleblower attorneys at Swartz Swidler. We can review the facts and circumstances of what has occurred and advise you about the legal merits of your claim. Contact us today to request a free and confidential consultation by calling us at (856) 685-7420.
