What is a Whistleblower?
What is a whistleblower? It’s a simple question, but it does not have a simple answer. While whistleblowers play a critical role in the government’s ongoing fight against fraud, waste, abuse, and other statutory violations, what it means to serve as a whistleblower varies depending on the circumstances involved.
If you think you might be able to serve as a whistleblower, it is critical to ensure that you are making informed decisions. There is a lot you need to know, and you need to make sure that you are relying on the advice of an experienced whistleblower lawyer. This article provides an introduction to some of the key concepts; and, if after reading you think that you may want to speak with a lawyer, we invite you to contact us for a confidential and complimentary consultation.
Blowing the Whistle: 10 Frequently Asked Questions (FAQs) About Serving as a Federal Whistleblower
So, what do you need to know if you are thinking about blowing the whistle? Here are the answers to 10 frequently asked questions (FAQs) about serving as a federal whistleblower:
1. What is a Whistleblower?
A whistleblower is an individual who reports a violation of law to the government. Whistleblowers can be private citizens or, in some cases, government employees. While most whistleblowers are private-sector employees who have learned of fraudulent or other unlawful practices through their employment, you do not have to be an employee to serve as a whistleblower. If you have information about fraud, waste, abuse, or another statutory violation that you have obtained in any capacity, you may be eligible for whistleblower protection under federal law.
However, to qualify as a whistleblower, it is not enough to simply send an email or submit a hotline complaint to the federal government. There are specific requirements you need to meet—and these requirements vary depending on the violation (or violations) you need to report and the specific federal agency that you need to contact. Even if you report information that the government can use to pursue a civil or criminal enforcement action, if you don’t do so correctly through the appropriate channels, you may not qualify as a whistleblower.
2. What Are the Federal Laws that Protect Whistleblowers?
Several federal laws contain whistleblower provisions. While some of these laws apply broadly (such as the False Claims Act), many of them are specific to certain industries or certain prohibited practices. Some of the most commonly used federal whistleblower statutes include:
- Dodd-Frank Act – The Dodd-Frank Act protects whistleblowers who disclose violations of the Commodity Exchange Act (CEA) and other laws that regulate the financial services industry.
- False Claims Act – The False Claims Act provides protections to whistleblowers who report all types of fraud, waste, and abuse. This includes (but is by no means limited to) fraudulent practices involving federal government contracts, federal healthcare benefit programs (i.e., Medicare and Medicaid), other federal programs (i.e., the Paycheck Protection Program (PPP) and Employee Retention Credit (ERC), and federal grants.
- Foreign Corrupt Practices Act – The Foreign Corrupt Practices Act (FCPA) prohibits domestic companies from engaging in corrupt practices abroad and prohibits U.S. government officials from accepting bribes from foreign entities. Violations of the FCPA threaten to undermine confidence in our governmental institutions while increasing costs for taxpayers, so exposing violations is extremely important.
- Sarbanes–Oxley Act – The Sarbanes-Oxley Act (SOX) provides protections to whistleblowers who expose violations of publicly traded companies’ accounting, recordkeeping, and disclosure obligations. It is one of several securities laws enforced by the U.S. Securities and Exchange Commission (SEC) and falling under the SEC’s Whistleblower Program.
- Whistleblower Protection Act – The Whistleblower Protection Act (WPA) protects qualifying federal employees and contractors who blow the whistle on government fraud, waste, and abuse. If you are a federal employee and you are thinking about blowing the whistle, you should speak with an attorney to learn about the protections afforded under the WPA.
While these are among the most commonly used federal whistleblower statutes, there are many more federal laws that contain whistleblower provisions. Some examples of other federal whistleblower laws include:
- Affordable Care Act (ACA)
- Clean Air Act (CAA)
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
- Consumer Financial Protection Act (CFPA)
- Consumer Protection Safety Improvement Act (CPSIA)
- Federal Railroad Safety Act (FRSA)
- Food Safety Modernization Act (FMSA)
- Occupational Safety & Health Act (OSHA)
- Solid Waste Disposal Act (SWDA)
- Toxic Substances Control Act (TSCA)
3. Who Can Qualify as a Whistleblower?
While there are some restrictions, particularly within the federal employment sector, the vast majority of individuals can potentially qualify as whistleblowers. While the specific eligibility requirements vary by statute, as a general rule, whistleblowers must meet three basic requirements:
- Non-Public Information – Under most (but not all) federal whistleblower statutes, you must have material non-public information that you can provide to the federal government. Compiling publicly available information is permitted in some cases.
- Original Information – Generally, you must be the first to provide information to the government to qualify as a whistleblower. If you aren’t the first, you may still be able to qualify by showing that you are the “original source” of the information.
- Voluntary Disclosure – To qualify as a whistleblower, you must also generally make your disclosure voluntarily. This means that you must not have received a request from the government, and you (or your employer) must not be the subject of a pending audit or investigation.
Again, these aren’t the only requirements, and these don’t apply in all cases. An experienced whistleblower lawyer will be able to determine if you qualify—and guide you through your next steps if you do.
4. What Are the Benefits of Being a Whistleblower?
The main benefit of being a whistleblower is protecting taxpayers, investors, or consumers who would otherwise suffer losses due to fraud, waste, abuse, or other statutory violations. Whistleblowers help the federal government save U.S. citizens tens of billions of dollars every year. Under certain statutes, whistleblowers are also entitled to financial compensation—including up to 30% of the amount the government recovers in some cases.
5. Are There Any Risks to Being a Whistleblower?
All federal whistleblowers are entitled to protection against retaliation in their employment. Federal whistleblowers are also entitled to confidentiality; and, in many cases, whistleblowers can remain completely anonymous. While there is always a risk that your employer could discern your identity, you will be entitled to clear remedies if your employer retaliates against you in violation of federal law. In terms of federal risk, if you have concerns that you could be implicated in the violation you are reporting, this is something that you will want to discuss with a whistleblower lawyer promptly.
6. How Do You File a Whistleblower Complaint?
The steps involved in filing a whistleblower complaint vary depending on the specific federal agency or whistleblower office you need to contact. Generally speaking, however, you will need to submit a written complaint along with substantiating documentation. It is extremely important that you submit both of these correctly and as soon as possible, as any mistakes or delays could potentially prevent you from securing whistleblower status.
7. What Happens After You File a Whistleblower Complaint?
While the post-filing procedures also vary depending on the federal agency or whistleblower office involved, once you file, the government will review your filing and determine if further investigation is warranted. Your whistleblower lawyer will play an active role in this process while serving as your liaison with the federal government. If the investigating agency or office determines that enforcement action is warranted, it may take action directly, or it may refer the matter to the U.S. Department of Justice (DOJ). If it declines to intervene, you may have the option of working with your lawyer to file a civil lawsuit on the government’s behalf.
8. Why Should You Consider Blowing the Whistle?
You should consider blowing the whistle if you believe that you may have information that could warrant enforcement action by the federal government. Once again, whistleblowers serve an essential function, and multiple federal agencies rely on whistleblowers to help them uncover fraud, waste, abuse, and other statutory violations. Blowing the whistle is the right thing to do, and the federal whistleblower statutes exist specifically to protect people in your circumstances.
9. Do Whistleblowers Need to Hire a Lawyer?
Technically speaking, you do not need to hire a lawyer to serve as a federal whistleblower in most cases. However, you can hire a lawyer at no out-of-pocket cost; and, due to the challenges involved in assessing your eligibility, meeting the filing requirements, and working with the federal government during its investigation, it is generally best to have an experienced whistleblower lawyer represent you throughout the process.
10. What Are My Next Steps if I Need to Blow the Whistle?
If you need to blow the whistle, your next step is to sit down and speak with a whistleblower lawyer one-on-one. This initial consultation should be 100% free and confidential, and it should be focused on helping you make an informed decision about whether to come forward. Hiring a lawyer does not obligate you to file a whistleblower complaint. Instead, the purpose of your initial consultation is to help you understand your situation, evaluate your options, and start charting your next steps.
Are You Thinking About Blowing the Whistle? Speak with an Experienced Whistleblower Lawyer in Confidence
Are you thinking about blowing the whistle? If so, we strongly encourage you to speak with one of our experienced whistleblower lawyers in confidence. Please call 888-680-1745 or contact us online to schedule a free and confidential consultation at Oberheiden P.C.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.