Understanding Whistleblower Protection Programs in the United States

Whistleblowers play a vital role in uncovering fraud, waste, and abuse, thereby safeguarding public health and safety. They are often employees, or “insiders,” of publicly traded companies or the federal government, where they have direct access to vast amounts of information and data that a non-employee would have. Many federal laws acknowledge the importance of whistleblowers and have developed their laws with strong provisions to protect and encourage whistleblowers to come forward without fear of retaliation. However, enforcement wouldn’t be possible without strong whistleblower protections.

This article provides an overview of whistleblower protection programs in the U.S., focusing on key legislation, reporting mechanisms, and practical guidance for individuals considering reporting wrongdoing.

What is Whistleblower Retaliation?

Whistleblower retaliation occurs when an employer (through a supervisor, administrator, or other person with authority) takes an adverse employment action against an employee for making a protected disclosure.

What is a Protected Disclosure?

To be protected, a disclosure must meet specific criteria:

• The disclosure must be based on a reasonable belief that the alleged wrongdoing has occurred. The definition of wrongdoing varies slightly depending upon your place of employment.
• The disclosure must be made to a person or entity that is authorized to receive it.

In general, HHS civilian employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.

Key Whistleblower Protection Laws

Several laws in the U.S. provide protection to whistleblowers across various sectors:

1. Whistleblower Protection Act (WPA)

Enacted to strengthen protections for federal employees, the Whistleblower Protection Act aims to promote accountability and transparency within the federal government. The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 prohibit Federal agency officials from taking, not taking, or threatening to take or not take a personnel action (e.g., a poor performance review, demotion, suspension, reassignment) against employees or job applicants who disclose:

• Violation of a law, rule, or regulation
• Gross mismanagement
• Gross waste of funds
• Abuse of authority
• A substantial and specific danger to public health or safety
• Censorship related to scientific research if censorship meets one of the above-listed categories

The law specifically prohibits federal agencies from retaliating against employees who make protected disclosures to supervisors, Inspectors General, Congress, or The Office of Special Counsel (OSC). Remedies for successful whistleblowers can include reinstatement and back pay.

2. Sarbanes-Oxley Act (SOX)

Enacted in response to major corporate accounting scandals, the Sarbanes-Oxley Act aims to enhance corporate governance and financial reporting integrity. Enforcement of SOX whistleblower protections is handled by the Department of Labor’s Occupational Safety and Health Administration (OSHA). Following is a list of statutes which OSHA enforces.

3. Dodd-Frank Act

Enacted in response to the 2008 financial crisis, the Dodd-Frank Act offers incredibly strong protections against retaliation. Under Dodd-Frank, whistleblowers who come forward to the SEC or CFTC are protected from retaliation. Whistleblowers can also receive between 10% and 30% of monetary sanctions collected by the SEC or CFTC that exceed $1 million.

4. False Claims Act

The False Claims Act is a federal law that allows individuals to bring legal action against individuals or companies who defraud the government. Whistleblowers, or employees, also known as relators, who file a qui tam lawsuit on behalf of the government are protected from retaliation by the False Claims Act. This program also offers compensation to whistleblowers.

5. Taxpayer First Act (TFA) of 2019

The Taxpayer First Act (TFA) of 2019 significantly strengthened whistleblower protections for tax whistleblowers. It prohibits employers from retaliating against employees who provide information to the IRS about tax law violations. Remedies available to successful whistleblowers can include reinstatement, double back pay, and compensation for damages. Under the IRS Whistleblower Program, whistleblowers can receive between 15% and 30% of the proceeds collected by the IRS, depending on the quality of the information provided.

6. Anti-Money Laundering (AML) Program

This program encourages individuals, such as bank employees, clients, or contractors, to come forward regarding violations of AML laws. Under the new AML program, whistleblowers are eligible to receive protection from retaliation.

7. State Whistleblower Protections

State False Claims Act laws can protect and reward those reporting fraud or corruption, often through qui tam lawsuits. However, these protections vary greatly. Some states offer strong safeguards, while others offer limited or no protection.

HHS Specific Protections

§ 4712 and Presidential Policy Directive 19 (PPD-19). § 1034, and cannot be restricted from communicating with OIG or a member of Congress. Public Health Service Commissioned Corps from retaliation for making protected communications. The MWPA also prohibits restricting members from communicating with OIG or a member of Congress. If you are an HHS employee and believe a retaliatory action was taken against you that affected your security clearance, you may submit a complaint to the HHS OIG Hotline.

Whistleblower Protection Coordinator

The Inspector General Act requires HHS OIG to designate an individual to serve as the Whistleblower Protection Coordinator (WPC).

Practical Guidance: How to Report Concerns

Whistleblowers who would like to report wrongdoing and seek protection can avoid retaliation altogether by keeping concerns to themselves and understanding the best practices for reporting their concerns under each program listed above, which vary. Some even allow for anonymous filing, which adds an extra layer of protection to disclosures.

Here are some steps to consider:

1. Seek Legal Assistance: Given the complexity of most whistleblower cases, it’s advised that you contact a whistleblower attorney for legal assistance. Most whistleblower attorneys with integrity will work on a contingency basis, which means they only get paid if they win your case.
2. Document Evidence: Your attorney will provide you with the best tips on collecting evidence legally, as collection methods vary from state to state. Do not break the law while gathering documents.
3. Determine Proper Reporting Channel: Depending on your concern, your employer has an internal compliance hotline or reporting system; consider using it, but only after speaking with your attorney. Reporting internally may help your case later if you choose to report externally. If you choose to report externally, your attorney will help you determine the appropriate government agency to contact (e.g., SEC, IRS, OSHA, EPA, Department of Justice).
4. File the Report: Each agency has specific procedures for reporting wrongdoing, and an attorney will ensure your report is complete and accurate with all the relevant documentation. They’ll also ensure filing deadlines are met, as failure to meet deadlines could result in your case being dismissed.
5. Maintain Confidentiality: It’s at this point that you must maintain strict confidentiality and anonymity! Sharing information to colleagues, family, or friends, may result in information being leaked, which can lead to retaliation.
6. Cooperate With Investigators: Once your report has been submitted, you’ll need to wait to hear from the agency to see if they’ve decided to pursue your case. With the help of your attorney, cooperate fully with any investigations conducted by government agencies.
7. Document Retaliation: If you experience retaliation, document it, and contact your attorney immediately. While the investigation is taking place, we urge you to familiarize yourself with the whistleblower protection laws that apply to your situation.

Need Legal Assistance?

Protect your rights and maximize your potential rewards. Whistleblower protection laws are not uniform, and expert legal guidance is essential. Don’t risk facing retaliation or missing out on potential compensation.

If you’re an employee seeking to report concerns confidentially, consider getting in touch with a reputable firm.

Some whistleblower programs allow anonymous reporting, which protects you from retaliation. Ready to blow the whistle? An experienced team is here to protect your rights and guide you through the process.

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