What is Whistle Blowing?

"Whistle Blowing" is when an employee reports an employer who is breaking the law. Employees who blow the whistle on their employers are protected by law. If they are fired or otherwise retaliated against for whistle blowing, they can sue.

 

In 1986, Congress added anti-retaliation protections to the False Claims Act. These provisions, which did not exist previously, are contained in 31 U.S.C. § 3730(h):

 

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of his employer or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.

 

The protection against retaliation extends to whistleblowers whose allegations could legitimately support a False Claims Act case even if the case is never filed. The statute of limitations for § 3730(h) claims is 6 years in most jurisdictions, but is currently shorter in California and a few other locations.

 

The whistleblower plaintiff is entitled to reinstatement with seniority, double back pay, interest, special damages sustained as a result of discriminatory treatment, and attorneys fees and costs. There is federal jurisdiction for these whistleblower claims. To establish a § 3730(h) retaliatory discharge claim, the whistleblower must engage in conduct protected by the False Claims Act. Second, the courts require a showing that the defendant have some notice of the protected conduct that the whistleblower was either taking action in furtherance of a qui tam action or assisting in an investigation or actions brought by the Government. Finally, the whistleblower must show that the termination was in retaliation for the protected activities. A False Claims Act qui tam case can include whistleblower claims and other legal claims based upon other state and federal laws.

 

There are dozens of federal and state laws protecting whistleblowers or otherwise designed to protect workers from retaliation or other illegal treatment. There are also many similar state and local laws. Most lawyers are not familiar with the employment laws pertaining to whistleblowing and few will know the laws outside the states in which they practice. Before making decisions based upon state laws, you should do some research yourself and consult with an experienced employment/labor attorney, accustomed to representing plaintiffs, to inform yourself about the various federal and state laws which might apply to protect you in your particular circumstances.

 

Unlike the False Claims Act, which allows a whistleblower to file a lawsuit in federal court, many of the federal whistleblower laws do not permit a whistleblower to go directly to court, but instead are to be pursued "administratively." Congress designed many of these laws so that an individual, with or without an attorney, may make a simple complaint or "charge" of retaliatory discrimination to a federal government agency. If not resolved administratively, an administrative law judge may preside over the only evidentiary hearing that will take place. Some retaliation and whistleblower statutes are relatively "hollow," that is, they prohibit illegal employer retaliation, but do not allow the individual to pursue an administrative charge or file a lawsuit. In legalese, such laws are described as providing no "private cause of action."Whistleblowers are cautioned, however, not to delay investigation of their possible legal remedies, as many of the laws have very short time limits. Some federal whistleblower statutes of limitations are as short as 30 days from the date of the alleged retaliation. A retaliation claim must be brought to the attention of the appropriate federal government official within that time period or cannot be pursued. Whistleblower or similar anti-retaliation protections providing a private cause of action or administrative remedy are also found in various federal and state statutes.

 

The Law Firm of David A. Young, LLC represents whistleblowers throughout the State of Ohio. Attorney David Young has been certified by the Ohio State Bar Association as a Specialist in the area of Labor and Employment Law. Attorney Young has also been recognized as a Super Lawyer in the State of Ohio for the years 2009 through 2013.