What Whistleblowing Is – And What It Is Not

gclatworthy
September 18, 2012

(US law) The public outcry associated with the collapse of the Enron Corporation established a social and financial focus on how malfeasance within a corporation can affect all of those connected to the company. The United States Congress was paying close attention and the result was the The Whistleblower Protection Act of 1989. The legislation effectively provides protections for individuals in a company that are participating or witnessing unethical or illegal activity within a corporate entity. The protections, however, are not totally encompassing.

Who Is A Whistleblower?

The Whistleblower Protection Act provides a legal path for any competent individual with corporate or bureaucratic standing to come forth to authorities and present their witnessed information, with the aid of whistleblower lawyers, without fear of retaliation from the accused entity. That does not mean that every individual is entitled to protection. Great emphasis has also been placed on false claims. Additionally, many states have also specifically addressed whistleblowing reports, or Qui Tam lawsuits, by determining invalid claims. Qui Tam lawsuits are brought in the name of the whistleblower against the offending party and allows the federal or state governments to join the plaintiff whistleblower in the lawsuit.

This legislation requires that the respondent has been defrauding a governmental agency, corporate shareholders, or evading taxes in a willful manner during regular business operations. Companies that may be operating unethically may not be subject to legal action on the part of the government if this legal test has not been met. The action must be fraudulent in some manner. There are several types of fraud that are normally included in this group, such as false medical claims or false securities and income claims. Many other pieces of legislation, such as Sarbanes Oxley and The National Labor Relations Act, have also specifically addressed individual protections.

Who Is Not A Whistleblower?

There is no real test for determining who is not entitled to whistleblower protections. That is why it is crucial for any individual providing information and having possible legal standing for filing a suit to consult with an experienced Qui Tam attorney before entering into the process. The protections are essentially invoked by the judge in any case. The plaintiff needs solid legal footing from the beginning. It is important to remember that any connection in a legal matter can be determined by the court as entanglement, establishing valid legal standing for the acting party to assist the government in actual adjudication via Qui Tam protections.

Coercion Against Whistleblowing

Coercion can come in many forms and can be illegal in many instances. It can be viewed by the court as a basis for punitive damages if documentation can be presented indicating the offending respondent has routinely been engaged in coercive activity towards the plaintiff. Always remember that the burden of proof in a civil tort case is preponderance of the evidence and carries a heavy burden against the respondent to disprove the claim. The standard is much easier to establish than the criminal burden of beyond a reasonable doubt and can be part and parcel to any Qui Tam claim.

The decision to become a whistleblower will always be difficult and because of continuing employment problems, this can be a life-altering event. Many potential employers require previous work references and often require the applicant to waive a legal right to defamation on the part of previous employers. This is fundamentally what restrains the potentially protected whistleblower from fulfilling what they may see as an obligation. Any potential litigant should always get a professional assessment of their legal position.

Georgina Clatworthy is a former legal blog editor and is now a contributing writer for the whistleblower lawyers at The Law Firm of Goldberg Kohn. Anyone considering making a claim under the False Claims Act should consult with them for advice on how to proceed and on protection under the Whistleblowers Protection Act. Goldberg Kohn are experienced attorneys who will awlays act to ensure your rights are protected.