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The Rights of Whistleblowers

Blowing the whistle on an employer can be a frightening prospect. Not only are you risking your job, but you could also be risking your professional reputation and those of your coworkers, many of whom you may care about deeply. However, no matter how difficult it may be, blowing the whistle is often the right thing to do under the right circumstances. If you are considering blowing the whistle, you should contact a California whistleblower rights attorney first to ensure your rights are protected. 

7 Things Every Whistleblower Needs to Know

Make Sure You Understand the Law Before You Blow the Whistle

There is no single “whistleblower law.” While the False Claims Act is the nation’s oldest and most well-known whistleblower law, the broader category of whistleblower law is governed by dozens of overlapping federal and state laws covering the different subject matter, enforced by various agencies, and with different requirements to prove a claim. Most whistleblower laws contain whistleblower protection provisions, but the specific contours of that protection vary from law to law. 

You May Not Win Your Case

Just because you are doing the right thing does not mean that you will win your case. For example, when you make a qui tam claim under the False Claims Act, the government will investigate your claim but may decide not to pursue it. You then have the option of pursuing it yourself, but there is no guarantee that you will win. 

You May Qualify for a Reward 

Many whistleblower laws incentivize whistleblowing by sharing a portion of the proceedings with the whistleblower. However, eligibility for rewards varies by statute, so make sure you understand it beforehand. 

You Can Maintain Confidentiality 

The possibility of receiving a reward is tempting, but going public with your whistleblower claim increases the risk of retaliation and media scrutiny. Many whistleblower schemes allow the whistleblower to file a claim anonymously, which may be preferable for many people. 

Pay Attention to Statutes of Limitation 

Most whistleblower laws are subject to statutes of limitation that can bar your claim if you wait too long to pursue it. For example, the statute of limitations for qui tam claims under the False Claims Act ranges from 3-10 years (depending on the circumstances), while the statute of limitations for whistleblower retaliation actions is three years. 

Stay Within the Bounds of the Law

There is a right way and a wrong way to go about whistleblowing. While a whistleblower’s participation in the fraud he or she alleges will not necessarily defeat a claim, it can reduce the award to which he or she is entitled. You should also ensure that you do not violate any laws to obtain evidence of such fraud — for example, by hacking into your employer’s records.  

Qualifying for a Reward 

Congress and state legislatures know that whistleblowing is a risky activity and that many potential whistleblowers will choose not to blow the whistle even when doing so is the right thing to do. To encourage legitimate whistleblower claims, most whistleblower laws provide rewards to whistleblowers under certain circumstances. In most cases, rewards amount to a percentage of the amount the government recovers in the action, with the exact percentage being determined by the usefulness of the information provided and the whistleblower’s cooperation.

For example, whistleblowers who report securities fraud and other violations to the Securities and Exchange Commission (SEC) may receive a reward when: 

  1. The information was provided voluntarily 
  2. The information was original 
  3. The information leads to a successful enforcement action
  4. The Commission obtains monetary sanctions totaling more than $1 million

For more information about qualifying for a whistleblower reward, please contact a California whistleblower rights attorney.

What Happens if You Are Wrong? 

Many potential whistleblowers choose not to blow the whistle because they are not 100% sure that their allegations are correct. They may fear that being wrong about their claim may exclude them from whistleblower protections or even result in criminal penalties. While being wrong about a claim likely will not qualify you for a reward, you are nonetheless protected from retaliation by whistleblower protection laws and will not face criminal penalties. 

The “Reasonable Belief” Standard 

Every whistleblower statute is different, but they generally do not require that a whistleblower be “correct” to be entitled to their protections. Instead, the whistleblower need only have a “reasonable belief” that his or her disclosures reveal wrongdoing. Using the Whistleblower Protection Act (which applies to employees of the federal government) as an example, a “reasonable belief” is one in which “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.”  A purely subjective perspective is not sufficient, even if it is shared by other employees. Rather, the facts on which the belief is based must be supported by substantial evidence. Generally, substantial evidence is what a reasonable person might accept as adequate to support a conclusion. 

Examples 

The “reasonable belief” standard is intensely fact-specific, and whether a particular whistleblower had a reasonable belief will turn on the facts of each specific case. As such, it may be helpful to illustrate the concept with a few examples. For even more specific information about your individual case, please contact a California Whistleblower rights attorney

In a 1997 case, a federal employee disclosed to the Inspector General that funds were being spent to send two employees who lived in Missouri to a training program located in Virginia, despite the same training program being offered locally in Missouri just two weeks later. The Inspector General found that the need for the training was time-sensitive, so it was not improper to send the employees to Virginia. The U.S. Merit Systems Protection Board held that the disclosure was protected by the whistleblower statute because the employee reasonably believed he or she was disclosing wrongdoing despite the belief being inaccurate. The employee had no reason to know that there was a time-sensitive need for the trip to Virginia; thus, the facts could cause a reasonable person to conclude that the trip was improper. 

In contrast, the court in a 2016 case involving the Sarbanes-Oxley Act reached the opposite conclusion. There, an employee of a real estate company alleged that her employer was charging a client’s account for services before the services had been completed. She alleged that the employer was doing this to drain the account before the end of the year so as to count the funds as revenues rather than liabilities. The court rejected her claim, finding that she failed to demonstrate any facts on which she could conclude that these activities were illegal. Instead, her complaint merely constituted disagreements about management style, efficiency, and competence. 

Bad Faith Claims

Whistleblowers who are incorrect but make their claims based on a reasonable belief in wrongdoing are protected by whistleblower retaliation laws. However, that protection does not extend to individuals who engage in whistleblowing in bad faith. For example, this could occur when a former employee with a grudge against his former employer makes a claim based on exaggerations or outright lies. Claims made in bad faith or without a reasonable belief in wrongdoing are not entitled to whistleblower protection. 

Contact a California Whistleblower Rights Attorney for More Information

As you can see, whistleblower claims and the protections whistleblowers are entitled to are highly fact-intensive. As such, you should consider speaking to an attorney before you choose to blow the whistle. To get started, please contact a California whistleblower rights attorney at the Evans Law Firm, Inc., by using our online form or calling us at 415-441-8669 or toll-free at 1-888-50EVANS (888-503-8267)

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