Definition of a whistleblower:
A whistleblower is anyone who reports activities of another person or entity that is illegal, dishonest, unsafe, or that violates specific public policy. This can be done in a number of ways: contact the government, contact a lawyer, filing a claim with certain agencies, or filing a qui tam lawsuit* in court. A person typically feels the need to be a whistleblower for ethical reasons or for fear of legal repercussions for acting or failing to act. He or she has witnessed fraud or some other illegal or potentially dangerous activity and feels compelled to report this behavior to either internal or external authorities.
Who can be a whistleblower?
Short Answer – Anyone.
A whistleblower can be anyone who has access to information that contains evidence of illegal, dishonest, or unsafe acts. This could be a client or patient, a spouse or other family member, a concerned citizen, or a current or former employee. Even someone who is involved in the fraud itself can blow the whistle.*
*This will involve extra coordination and legal assistance.
What types of activity are usually reported by whistleblowers?
The activities usually reported include, but are not limited to:
- Overbilling of healthcare services (Medicare and/or Medicaid Fraud)
- Overbilling of contracts with the government
- Selling faulty goods to the government
- Fraud against shareholders of a company
- Defrauding a financial institution
- Tax Fraud – corporate or personal
- Environmental violations
- Off label use of pharmaceutical products
What is a qui tam lawsuit?
A whistleblower, also known as the plaintiff/relator, files the lawsuit in federal court under the False Claims Act.
How long will this process last?
It can vary from a few months to several years. Each case is unique.
For how long after a fraud has been committed can it be reported for a qui tam suit?
Generally, for up to 6 years after the fraud was committed.
How would a whistleblower be protected?
There are many laws that protect whistleblowers so they can stop, report, or testify about actions that are illegal, unhealthy, or violate specific public policies. Depending on the applicable statute, remedies may vary. These may include punitive damages, attorney fees, nonmonetary remedies, injunctions, etc.
Is the whistleblower’s privacy protected?
Initially the lawsuit will be filed under seal and the details of the case, including the identity of the whistleblower, are kept private. However, at some point the government can decide to make the lawsuit public.
Sampling of Protective Laws:
False Claims Act – Federal law that imposes liability on persons and companies who defraud governmental programs. It is the federal government’s primary litigation tool in combating fraud against the government.
Whistleblower Protection Act of 1989 – Protects federal employees from the agency they work for from taking (or threatening to take) retaliatory personnel action against them because of disclosing information that may violate a law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Affordable Care Act – Protects employees who report violations of the Act, including discrimination, denial of coverage, failure to rebate, etc.
Asbestos Hazard Emergency Response Act of 1986 – Protects employees who report violations of laws relating to asbestos in schools.
Clean Air Act – Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources.
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – Protects those who report alleged violations relating to any kind of cleanup of hazardous waste.
Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 – Protects employees reporting possible violations of the Dodd-Frank Act or any other law under the jurisdiction of the Bureau of Consumer Financial Protection.
Consumer Product Safety Improvement Act – Covers employees of consumer product manufacturers, importers, distributors, retailers, and private labelers who report possible violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission.
Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act – Protects employees of publicly traded companies who report or provide information about Securities and Exchange Commission (SEC) violations and/or shareholder fraud.
Energy Reorganization Act (ERA) – Protects any type of operator, contractor, or subcontractor of nuclear power plants and employees of contractors working with the Department of Energy from retaliation for reporting violations or for refusing to violate the ERA or the Atomic Energy Act.
FDA Food Safety Modernization Act – Protects employees of food manufacturers, distributors, packers, and transporters for reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act. Employees are also protected from retaliation for refusing to participate in a practice that violates the Act.
Federal Railroad Safety Act – Protects employees, contractors, and subcontractors who report a hazardous safety or security condition, a violation of law or regulation, or the abuse of public funds. Also, protects those who refuse to work due to a safety or security issue.
Federal Water Pollution Control Act – Protects against retaliation for reporting alleged violations about the discharge of pollutants into water.
International Safe Container Act – Protects those working in international shipping who alert authorities to a potentially unsafe cargo container.
National Transit Systems Security Act – Protects employees, contractors, and subcontractors who report a hazardous safety or security condition, a violation of law or regulation, or the abuse of public funds. Also, protects those who refuse to work due to a safety or security issue.
Pipeline Safety Improvement Act – Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws.
Safe Drinking Water Act – Prohibits retaliation against the reporting of potential allegations about actual or potential drinking water.
Seaman’s Protection Act – Protects employees who report to the Coast Guard or to another federal agency a violation of a maritime law or regulation.
Solid Waste Disposal Act – Prohibits retaliation against anyone who reports alleged violations relating to the disposal of solid and hazardous waste, including medical waste.
Surface Transportation Assistance Act – Protects employees of trucking companies who refuse to violate regulations that ensure safety measures are in place as well as those who report these violations.
The OSHA (Occupational Safety and Health Administration) Act of 1970 – Protects OSHA employees from retaliation for filing a complaint or testifying in proceedings arising from the complaint.
Toxic Substances Control Act – Prohibits retaliation towards anyone who reports alleged violations relating to industrial chemicals.
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century – Protects those who report violations of laws related to aviation safety.
Along with these federal acts, several states have unique laws and protections for whistleblowers.