The Risks of Being a Whistleblower

Disclosing the unlawful activities of an enterprise tends to pose some risks for those who work for that enterprise. Whistleblowers are frequently subject to termination for their disclosures. Most states do not require employers to provide employees with any type of reason for terminating at will employees.

Many law firms like Goldberg Kohn have begun specializing in whistleblower cases and have achieved landmark settlements. In the absence of any contract stipulating that the employee may only be dismissed for certain enumerated reasons, employers may terminate whistleblowers and it is up to the whistleblower to prove that he or she was unfairly retaliated against in a subsequent lawsuit or complaint to the Occupational Safety and Health Administration.

The Trauma That May be Involved

Reassignment is another common form of workplace retaliation. In some cases, employers recognize that they cannot easily terminate employees without violating state and federal law and becoming subject to a civil suit for wrongful termination or breach of contract. Employers who still wish to retaliate will often adjust the employee’s working conditions, assignments, or essential duties to increase the employee’s discomfort. In such cases, it can be difficult to prove in a court of law that retaliation occurred.

Whistleblowers who retain their positions may also be subject to social alienation. All people communicate more readily with parties whom they believe are trustworthy. Even normally honest coworkers will occasionally discuss issues that are not intended to be publicized. If it becomes known that a particular coworker, supervisor, or subordinate is willing to discuss seemingly confidential matters with other parties, then few people will willingly associate with that coworker. Recently, The Washington Post reported that the Energy department was being investigated for retaliating against whistleblowers. “Congress pressed the Energy Department on Thursday for answers over allegations that it retaliated against employees who spoke to a watchdog about discriminatory hiring processes at a federal nonprofit agency within the department’s jurisdiction.”

These practices often have a chilling effect on whistleblower activity. Recently, whistleblowers disclosed details of the effects of a pilot program that the United States Department of Agriculture (U.S.D.A.) has been operating for over ten years at several American hog plants. The program allowed the company to replace half of the U.S.D.A. inspectors with private inspectors. According to the whistleblowers, this led to diminished meat quality and some public health risks. Despite many whistleblowers submitting affidavits to that effect, only a USDA inspector would speak publicly due to a fear of retaliation.

The Benefits of Being a Whistleblower

One of the primary benefits of being a whistleblower is to retain the moral high ground. Whether they disclose activities that are unethical, clearly illegal, or pose a danger to the public, whistleblowers notify regulators and the public at large about those who may be attempting to cheat the system.

By exposing unlawful conduct, whistleblowers create disincentives to engage in such conduct, as the individuals engaged in unlawful activity can no longer count on employee silence. Whistleblowers also motivate and inspire others to come forward, thus increasing the benefits to society. Whistleblowers also distance themselves from the offending conduct.

If an ethereal sense of right and wrong does not motivate action, money may be more persuasive. Depending upon the situation, whistleblowers may be entitled to compensation. Depending upon the extent of the ongoing fraud, the nature of the injured parties, and the damage amounts, the compensation provided to whistleblowers can be substantial.

The federal False Claims Act allows whistleblowers to notify the government of fraudulent conduct committed against it and provide it with the opportunity to seek redress; if not, the employee may pursue a qui tam action on behalf of the government. Depending upon the level of the whistleblower’s involvement, he or she will be entitled to a sizeable percentage of the award. The Internal Revenue Service also offers rewards for outing tax violators.

The Money That Could be Awarded

In late August of 2013, the Securities and Exchange Commission awarded $125,000 to several whistleblowers who came forward to disclose investment fraud amounting to $1.7 million. In the same month in Santa Fe, New Mexico, a New Mexico Department of Health employee who blew the whistle on accounting practices within the Department was awarded $134,642. Even Edward Snowden was recently awarded a German whistleblower award amounting to approximately $3,900.

Whether through a strong moral code and sense of altruism or a desire to take advantage of government whistleblower protections, whistleblowers have strong incentives to come forward. While retaliation in the short term is a possibility, whistleblowers have recourse if they experience it. In the long run, society needs whistleblowers to raise issues and shed light on criminal and unethical conduct.

Valerie Stout Cyrus is a freelance writer who frequently researches whistleblower settlements. She has found that Goldberg Kohn is committed to representing whistleblowers and bringing entities who commit fraud against the government to justice.