In most whistleblower cases, the government agency involved will do their best to keep the whistleblower’s identity confidential to the extent practicable and permitted by law. The whistleblower can remain completely anonymous under certain circumstances in cases filed under the Dodd-Frank Act, but most other situations will ultimately require the whistleblower’s information be disclosed to interested parties. In public court cases, the whistleblower’s name and testimony may even become public knowledge.

SEC whistleblower program

Under the Securities and Exchange Commission (SEC) whistleblower program, anyone with evidence of securities fraud can submit a complaint to the SEC. If the SEC investigation results in more than $1 million in sanctions, the whistleblower is entitled to a 10% to 30% reward.

Whistleblowers who submit a tip under the Dodd-Frank Act and participate in an SEC case can remain completely anonymous if the original tip and all subsequent communications are handled through an attorney. Other aspects of the SEC case may become public knowledge throughout the course of the case, and non-public information will likely be revealed to the fraudster in the course of the investigation, but the SEC is required to keep the whistleblower’s information completely confidential.

If a whistleblower chooses to file the original tip without an attorney, the SEC will do its best to keep the whistleblower’s identity confidential, but the agency may disclose his or her identity if it becomes necessary. This remains the case when a whistleblower files the initial claim individually but later hires an attorney during the case.

CFTC whistleblower program

Securities fraud cases that specifically deal with commodities futures, options, and swaps fall under the jurisdiction of the Commodity Futures Trading Commission (CFTC). As these cases are also subject to the Dodd-Frank Act, the whistleblower process, rewards, and confidentiality requirements are the same as with the SEC whistleblower program. In order to remain anonymous throughout the whistleblower case, the whistleblower needs to file their initial complaint through their attorney, and handle all subsequent communications with the CFTC through their attorney.

IRS whistleblower program

The Internal Revenue Service (IRS) whistleblower program was established in Section 406 of the Internal Revenue Code. When a whistleblower submits credible evidence of tax fraud that leads to an individual or organization paying uncollected taxes, penalties, and interest, the IRS is authorized by Congress to pay a reward to the whistleblower. If the taxes, penalties, and interest amount to more than $2 million, and if the individual in question has an annual gross income of more than $200,000, the whistleblower is entitled to a reward of 15% to 30%. If the taxes, penalties, and interest amount to less than $2 million, or if the individual’s annual gross income is less than $200,000, the whistleblower will receive a maximum reward of 15%.

As with the SEC and CFTC whistleblower programs, the IRS allows a whistleblower to maintain complete anonymity throughout the case as long as the original tip is filed through an attorney. If the whistleblower doesn’t use an attorney, the IRS will do its best to maintain confidentiality but is under no legal obligation to maintain the whistleblower’s anonymity if the circumstances require disclosing personal information.

False Claims Act whistleblower program

Under the federal False Claims Act (FCA), a whistleblower can file a qui tam lawsuit against an individual or organization who has defrauded the government (e.g. Medicare fraud, Medicaid fraud, defense contractor fraud, etc.). In a qui tam lawsuit, the whistleblower sues the alleged fraudster on behalf of the United States Government and is entitled to keep a portion of the final settlement or court judgement as a reward. Depending on the case, the whistleblower can walk away with 15% to 30% of the awarded damages.

Qui tam lawsuits are filed “under seal” in federal court. The defendant won’t receive a notice of the complaint against them, and as long as the seal remains intact the only parties who are privy to the case will be the whistleblower’s attorneys, the court, and federal authorities. The court will normally keep the case sealed until the Department of Justice (DOJ) has an opportunity to perform an investigation. If the DOJ declines to intervene, the whistleblower can withdraw their lawsuit and the individual or organization in question will never know about the lawsuit. If the DOJ intervenes and takes over the case, or if the whistleblower decides to pursue the case without the DOJ, the court will lift the seal and the whistleblower’s identity will be revealed.

EEOC whistleblower program

The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing workplace discrimination and harassment laws. Any employee or job applicant who is discriminated against on the basis of race, color, religion, national origin, gender, pregnancy, age (over 40), or disability, has the right to submit a complaint with the EEOC and file a civil suit in federal court. In either case, the employer will know the whistleblower’s identity.

OSHA whistleblower program

The Occupational Safety and Health Administration (OSHA) handles cases where a whistleblower is retaliated against for submitting a workplace safety complaint, requesting a safety inspection, or participating in a workplace safety investigation. As with the EEOC whistleblower program, the employee who has been retaliated against has the right to file a claim with the OSHA and to file a civil suit in federal court. In both cases, the employee won’t be able to remain anonymous.

Internal whistleblower complaints

Whistleblowers who submit an internal complaint within the company aren’t entitled to a whistleblower reward, but they’re still protected against employer retaliation. Human resources departments are well aware of this, so most companies have strict programs for reporting and handling internal complaints. The employer has an ethical responsibility to keep the whistleblower’s identity confidential, but the company is under no legal obligation to maintain the employee’s anonymity.

In fact, if circumstances arise that require disclosing the whistleblower’s identity (e.g. as part of a related government investigation), the company won’t have much choice in the matter and may be compelled to disclose the employee’s identity. Companies can promise to keep the employee’s identity confidential to the extent it’s practical and permitted by law, but they can’t promise complete anonymity.

Retaliation

Unless the whistleblower is working with the IRS, SEC, or CFTC through an attorney, it’s safe to say that his or her identity will eventually be disclosed to the employer. If and when that happens, it’s not uncommon for an employer to retaliate against an employee. Retaliation is defined as any adverse action against the employee, and can include blacklisting, termination, demotion, discipline, harassment, pay cuts, revoking benefits, reducing hours, and reassignment that negatively affects the employee’s prospects for a promotion.

When a whistleblower is subject to retaliation, the agency handling their claim (the SEC, CFTC, IRS, DOJ, EEOC, or OSHA) has the authority to seek a remedy for the whistleblower in the form of compensatory and punitive damages based on the employee’s lost income. In most cases, the whistleblower is also eligible to file a civil lawsuit against the employer to seek additional damages in relation to lost income.

 

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