If you are planning on blowing the whistle, you’re probably wondering “Do I have rights?” and “Am I protected?”
The answer is yes, but your protections vary based on the type of whistleblower case you have.Protection From Retaliation
1. False Claims Act (FCA)/Qui Tam Action
The FCA protects whistleblowers from retaliation for engaging in protected activity. Retaliation includes being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee…in furtherance of an action” under the FCA. In other words, an employer cannot retaliate against an employee for internally reporting the fraudulent activities, investigating the possible fraud, and/or taking steps to remedy or stop the fraudulent activities.
If you have been retaliated against, you must a separate civil action, in addition to the qui tam action, within three (3) years of the date when the retaliation occurred.
In a retaliation suit you must show (1) you engaged in protected activity in furtherance of an FCA action; (2) your employer knew about these acts; and (3) your employer discriminated against you because of such conduct. If all this applies, you are entitled to retaliation relief, which includes:
- reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination,
- two times the amount of back pay, interest on the back pay, and
- compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.
2. Dodd-Frank Act
The Dodd-Frank Act has anti-retaliation provisions to protect whistleblowers who provide information to the Securities and Exchange Commission (SEC) or under the Sarbanes-Oxley Act. This means that, the whistleblower must have made a report to the appropriate authority in order to be eligible for a retaliation claim. The anti-retaliatory provision of the Dodd-Frank Act states that:
“No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—
- in providing information to the Commission in accordance with this section;
- in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or
- in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), including section 10A(m) of such Act (15 U.S.C. 78f(m)), section 1513(e) of title 18, United States Code, and any other law, rule, or regulation subject to the jurisdiction of the Commission.”
Whistleblowers who believe they have been retaliated against must file an action in federal court within 6 years after the date of the violation, or within 3 years after the date material facts were known or should have been known to the complainant, but in no event more than 10 years after the violation occurred.
Relief for an individual prevailing in an action brought under the Dodd-Frank Act anti-retaliatory provision, includes—
- reinstatement with the same seniority status that the individual would have had, but for the discrimination;
- 2 times the amount of back pay otherwise owed to the individual, with interest; and
- compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.
3. Sarbanes-Oxley Act (SOX) of 2002
SOX contains both a civil and a criminal whistleblower provision.
Civil Whistleblower Provision: Section 806 of SOX prohibits retaliation against employees of publicly traded companies, their subsidiaries, and their affiliates, who blow the whistle on fraud against shareholders and violations of securities laws. Retaliation includes discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee in the terms and conditions of employment for engaging in lawful acts.
Whistleblowers who believe they have been retaliated against must file a complaint with the Secretary of Labor within 180 days of the adverse action.
An employee prevailing in any action brought under the SOX anti-retaliation provision shall be entitled to all relief necessary to make the employee whole, including:
- reinstatement with the same seniority status that the employee would have had, but for the discrimination;
- the amount of back pay, with interest; and
- compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.
Criminal Whistleblower Provision: The anti-retaliation provision in Section 1107 of the Act applies to all persons and entities. It states: “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.”Anonymity
1. False Claims Act (FCA)/Qui Tam Action
FCA actions are filed under seal, which means that the case is not available to the public and cannot be unsealed until a Judge orders it. This means that the whistleblower’s identity will be protected for a period of time, often lasting several years.
If after its investigation, the government decides to intervene in the suit and a settlement is reached, the Department of Justice will issue a press release and the whistleblower’s identity will become public. If the government declines to intervene and the whistleblower decides to pursue the case, the case will be unsealed and the whistleblower’s identity will become public. If the government declines to intervene and the whistleblower does not continue with the case, the whistleblower’s identity and the fact that he/she filed a qui tam complaint will not be disclosed to the public.
2. IRS Whistleblowers
The IRS whistleblower program offers anonymity to those who step forward to report illegal schemes and tax violations. A person’s identity is securely protected by law the moment a case is presented to the IRS, throughout the examination process. However, if the decision is appealed to the United States Tax Court, individuals may be called as witnesses and required to attend judicial proceedings wherein they may need to be identified or the court may order the release of their identities.
3. SEC Whistleblowers
The SEC will not disclose the names or identifying information of the whistleblowers. To file anonymously, you must have an attorney represent you in connection with your submission.