How To Become a Whistleblower

Introduction

Federal, state, and local government agencies work hard to ensure that employers in the United States conduct business fairly, ethically, and lawfully, but the government can’t catch everything. At the end of the day, the people who are most likely to find evidence of unethical or illegal activity in the workplace are the employees.

What is a whistleblower?

A whistleblower is an employee who reports evidence of illegality, general wrongdoing, abuse of power, mismanagement, fraud, gross waste, discrimination, harassment, workplace safety, or anything that represents a substantial and specific danger to public health and safety. Employees who report such activity are protected by federal law against employer retaliation, regardless of whether the whistleblower chooses to submit their report internally (to a manager, supervisor, or HR) or externally (to an agency such as the EEOC, OSHA, SEC, or IRS). If a whistleblower submits a report to a government agency and the agency takes action that results in a legal settlement or court judgement, the whistleblower may be entitled to a financial reward.

Whistleblower programs

If you have evidence of illegal activity and would like to submit a federal whistleblower complaint or lawsuit, you’ll need to determine which program you qualify for based on which laws were broken and which federal agency has jurisdiction over those laws. Generally speaking, there are five whistleblower programs that may apply to your situation:

• The False Claims Act whistleblower program
• The SEC whistleblower program
• The IRS whistleblower program
• The EEOC whistleblower program
• The OSHA whistleblower program

False Claims Act whistleblower program

The False Claims Act (FCA) holds individuals and companies liable for defrauding government programs (e.g. Medicare, Social Security, etc.). It’s the federal government’s primary litigation tool against fraudulent activity that causes the government to lose money or pay for substandard goods and services, and it’s also the most commonly used program for whistleblowers.

If you have evidence that an individual or company has defrauded the federal government, here’s how to become a whistleblower under the FCA:

1. Hire an attorney – unlike the other whistleblower programs that allow you to file a complaint on your own, the FCA requires an attorney.
2. File a qui tam lawsuit – your attorney will file a federal complaint “under seal” on behalf of the United States Government. The complaint will need to offer a detailed explanation of how the individual or company has defrauded the government. Note that as long as the lawsuit remains under seal, the individual or company will have no knowledge of the lawsuit—only your attorney, federal authorities, and the court will be privy to the proceedings—thus protecting your identity and the integrity of the investigation.
3. Submit a disclosure statement – after the lawsuit is filed, your attorney will submit a disclosure statement with all of the supporting evidence for your claim (emails, files, documents, etc.)
4. The DOJ will assess the case – as a qui tam suit allows you to file on behalf of the government, it makes sense that the government should have the opportunity to join the lawsuit. The US Department of Justice (DOJ) will assess your case and decide whether or not they wish to intervene.
5. DOJ investigation – if the DOJ chooses to intervene, they will take over the investigation and the lawsuit. When the lawsuit concludes, you’ll be entitled to a portion of the settlement or court judgement.
6. The DOJ may not intervene – if the DOJ declines to join the lawsuit, you can continue your qui tam suit against the individual or company. Continuing without DOJ involvement means more work for your legal team, but it also means you get to keep much more of the settlement or court judgement at the conclusion of the lawsuit if you’re successful.

Note that there is a statute of limitations for qui tam lawsuits under the FCA. If the alleged fraud is known to the public and/or government, you’ll need to file your lawsuit within six years. If the alleged fraud has not been discovered by the public and/or government, then you have ten years to file your qui tam lawsuit.

SEC whistleblower program

The Securities and Exchange Commission (SEC) regulates banking and financial markets, so any whistleblower claim regarding financial or security fraud will go through them. You aren’t required to have an attorney for SEC whistleblower claims, but the SEC will only let you remain anonymous if you have an attorney, so it’s generally advised to hire an attorney.

You can file a whistleblower complaint with the SEC online or by mail with a Form TCR. Depending on the credibility of your tip and the evidence supplied, the SEC will then launch an investigation. If the investigation results in at least $1 million in sanctions against the individual or company, you may be entitled to a reward ranging anywhere from 10% – 30% of the sanctions.

IRS whistleblower program

If you have evidence that an individual or company has committed tax fraud, you can file a tip with the Internal Revenue Service (IRS). As with SEC whistleblower claims, you’ll need to file the tip through an attorney if you wish to remain anonymous. The IRS only accepts whistleblower tips by mail via Form 211, and tips generally need to be filed within three years of the alleged tax fraud.

EEOC whistleblower program

The US Equal Employment Opportunity Commission (EEOC) is the agency that enforces federal workplace discrimination laws in the United States. If an employer discriminates against an employee on the basis of race, color, religion, national origin, sex, pregnancy, age (over 40), or disability, the employee can file a whistleblower claim with the EEOC. The EEOC also protects against employers who retaliate against whistleblowers, so the EEOC may be involved in your whistleblower case even if your original complaint was with the DOJ, SEC, or IRS.

If you have evidence of workplace discrimination, here’s how to submit a whistleblower claim with the EEOC:

1. File a complaint – begin the process by filing a complaint online with the EEOC within 180 days of the alleged discrimination or retaliation
2. Meet for an interview – when the agency receives your complaint, someone will contact you to schedule an interview with an EEOC agent in their local office. At the interview, you’ll have the opportunity to present evidence and make your case against the employer.
3. Sign the complaint – if the EEOC agent believes there is sufficient evidence, they’ll have you sign a formal complaint against the employer and will launch an investigation
4. File a civil lawsuit against the employer – Title VII of the Civil Rights Act gives you the right to seek civil damages from an employer who engages in workplace discrimination or retaliation. If you wish to file a lawsuit, you’ll need to hire an attorney and file the suit within 30 days of signing the complaint with the EEOC.

OSHA whistleblower program

Last but not least is the whistleblower program for the Occupational Safety and Health Administration (OSHA). This program is specifically for employees submit a workplace safety complaint or participate in a safety inspection and are subsequently retaliated against by the employer. The easiest way to submit a whistleblower complaint with the OSHA is on their website, here.

Call our Employment Law team at (480) 464-1111 to discuss your case today.