Understanding a Whistleblower Claim
What to Know Before Blowing the Whistle in California
Whistleblowers serve an important role in our society. They serve as the eyes and ears of the law in rooting out and exposing corruption. When whistleblowers expose fraud against the government, such as through the False Claims Act, they expose fraud perpetrated against the American people by extension. But blowing the whistle can be a distressing undertaking and one that should not be entered into lightly. If you are considering blowing the whistle against your employer, you should know a few things before doing so. Read on for more information or contact a San Francisco whistleblower lawyer for specific questions.
How Do I Know if I Have a Case?
It is not always easy to know whether you have witnessed fraud or whether the fraud you saw is severe enough to begin the formal whistleblowing process. Before you blow the whistle, you should know what kinds of offenses are subject to whistleblower laws. Generally, whistleblowing is intended for reporting behavior that causes harm to others or the public at large, such as crimes, tax evasion, regulatory infractions, health and safety violations, financial misconduct, discrimination, and cover-ups of illegal activity. Such fraudulent actions can occur in a wide range of settings, including:
- Government contractor fraud: Overbilling the government, submitting invoices for services that were never rendered, inflating the number of hours worked, etc.
- Healthcare fraud: Billing for services not rendered, incorrect reporting of diagnoses, performing unnecessary procedures, reimbursement for unapproved medications, etc.Healthcare fraud includes the government programs of Medicare and Medi Cal.
- Tax fraud: Tax evasion, claiming personal expenses as business expenses, overstating deduction amounts, offshore tax avoidance through use of foreign bank accounts and corporations, etc.
- Securities fraud: Accounting manipulation, misrepresentation of material facts, insider trading, etc.
- Insurance fraud: Overselling policies, churning, bad faith denial of claims, etc.
Each of these types of fraud can result in serious harm to their victims; if you witness any of these types of fraud, especially where they are part of a larger pattern of fraud, you may have a valid whistleblower claim under federal or California law.
Are There Negative Consequences for Blowing the Whistle?
Anyone who exposes fraud or corruption is at risk of adverse consequences from their target. In the whistleblowing context, such consequences are known as whistleblower retaliation. Retaliation occurs when the whistleblower’s employer takes adverse action against them for engaging in a protected activity. Such acts can include:
- Denial of promotion
- Intimidation and harassment
- Reassignment to less desirable duties
- Relocation to undesirable location or an inconvenient office
- Reducing pay or hours
- Blacklisting within an industry
- Constructive discharge (i.e., making working conditions so intolerable that the employee feels forced to quit)
Not all whistleblowers face retaliation. However, the danger of retaliation is high, and you should be aware of it whenever you are considering blowing the whistle.
How Can a San Francisco Whistleblower Lawyer Provide Me with Protection?
While the danger of whistleblower retaliation is serious, whistleblowers are not without legal recourse if they suffer adverse employment actions due to blowing the whistle. Most laws that authorize whistleblowing also contain provisions that provide a cause of action to a whistleblower who was retaliated against. Each whistleblowing statute is different, but the Occupational Safety and Health Administration (OSHA) — which administers over 20 federal whistleblower protection laws — is illustrative. OSHA requires a whistleblower alleging retaliation to show four elements in his or her complaint:
- The employee engaged in activity protected by the whistleblower protection laws (such as a violation of law),
- The employer knew about, or suspected, that the employee engaged in the protected activity,
- The employer took an adverse action against the employee, and
- The employee’s protected activity motivated or contributed to the adverse action.
Once the employee files a complaint with OSHA and determines that an investigation is merited, it will notify the complainant (the employee), the respondent (his or her employer), and any other federal partner agency involved that it has opened an investigation. Each party will then submit relevant evidence to the investigator, as well as to the opposing party. After the investigation, the investigator will make a recommendation, which will include remedies, if applicable.
Possible remedies for whistleblower retaliation vary by statute and agency, but, again, OSHA’s policies are illustrative. Remedies for retaliation under OSHA-administered whistleblower statutes include:
- Reinstatement of employment
- Back pay, including bonuses, overtime, and benefits
- Compensatory damages for pecuniary losses
- Compensatory damages for emotional distress, mental anguish, and pain and suffering
- Punitive damages (in cases of willful or egregious misconduct)
- Attorney’s fees
While it is impossible to prevent whistleblower retaliation completely, the law provides a remedy for its victims. For more information about remedies for victims of whistleblower retaliation, please contact a San Francisco whistleblower lawyer. Act quickly if you have been a victim of retaliation on the job because there are very short periods of time in which you can sue and other important administrative and procedural requirements before you sue in court.
What’s In It for Me if I Blow the Whistle?
Most whistleblowers are motivated by a sense of personal integrity, a desire to protect others, or a feeling that it is their moral duty to expose injustice. Holding wrongdoers accountable for their actions and stopping corruption and abuse can often deliver immense personal satisfaction. But blowing the whistle can be dangerous and exposes the whistleblower to significant personal and professional risks. In recognition of that risks, most whistleblower statutes entitle a successful whistleblower to a reward, which is usually a certain percentage of the amount of money recovered as a result of the whistleblower’s tip. For example, the False Claims Act rewards plaintiffs with 15%-30% of the amount the government recovers from the defendant, based on the usefulness of the whistleblower’s information.
Do I Need a Whistleblower Attorney?
Most whistleblowing statutes allow individuals to pursue whistleblower actions without an attorney (known as proceeding “pro se”). There are two significant exceptions where an attorney is required:
- Qui tam actions under the False Claims Act
- Dodd-Frank claims in which the claimant wishes to remain anonymous
Even if you are not required to hire a whistleblower attorney, you should consider doing so anyway for two several reasons. First, an attorney can help you evaluate your claim to determine whether you should blow the whistle in the first place. Second, an attorney can help you file suit and navigate the complex legal and regulatory requirements often involved in whistleblower actions. And third, an attorney can help protect you from retaliation or pursue a whistleblower retaliation action on your behalf.
Still Curious? Contact a San Francisco Whistleblower Lawyer to Find Out More.
If you are considering becoming a whistleblower and would like to speak to an attorney, please contact a San Francisco whistleblower lawyer at Evans Law Firm, Inc. by filling out our online form or calling us at 415-441-8669.