A major concern for anyone considering blowing the whistle is fear of employer retaliation and other adverse consequences for speaking up and doing the right thing. Lawmakers understand and are sensitive to this concern, and have thus enacted strong protections that, among other things, give whistleblowers the right to bring the information to an attorney and the government and to be free from employer harassment or retaliation for disclosing the misconduct.
Whistleblower’s Right to Disclose Information to an Attorney and the Government
Organizations engaged in wrongdoing have long attempted to discourage and bully whistleblowers by forcing them to sign rigid confidentiality agreements and threatening suit if the whistleblower discloses any misconduct to law enforcement. A powerful provision in the Defend Trade Secret Act of 2016, § 1833b, now protects whistleblowers from these ploys. Broadly, the provision grants whistleblowers immunity from liability under any federal or state trade secret laws for reporting an employer’s suspected violation of law to the government. The protection only applies if the disclosure is made: (1) in confidence to an attorney, or an official of any federal, state, or local government, and (2) solely for the purpose of reporting or investigating a suspected violation of law. It also grants whistleblowers immunity from liability for disclosing an employer’s confidential information in a complaint or other document filed under seal in a lawsuit or other proceeding (such as a qui tam complaint). Employers are required to notify employees of these rights and immunities in any agreement that purports to limit the employee’s right to disclose a company’s trade secrets or confidential information.
This immunity provision empowers whistleblowers to come forward with the peace of mind that they will not face legal liability for doing what is right. But to be entitled to immunity, the whistleblower must disclose the information in the right way. Therefore, anyone thinking of blowing the whistle should consult with a qualified whistleblower attorney to guide them through the process.
Whistleblower’s Right to Be Free From Employer Retaliation
Virtually every statute that gives whistleblowers a right of action or recovery has stringent anti-retaliation provisions, forbidding employers from harassing or taking any adverse action against employees who blow the whistle. Below are some of the many protections whistleblowers have:
Anti-Retaliation Rights Under the Federal False Claims Act
The Federal False Claims Act forbids a company from discharging, demoting, suspending, threatening, harassing, or engaging in any other manner of discrimination against employees, contractors, or agents for lawful acts done in efforts to report or stop government fraud. Victims of company retaliation are entitled to all the relief necessary to make them whole, including (1) reinstatement with the same seniority status they would have had but for the discrimination, (2) two times the amount of back pay, (3) interest on the back pay, and (4) compensation for any special damages sustained, including litigation costs and reasonable attorneys’ fees.
Anti-Retaliation Rights Under the State False Claims Acts
Like the Federal False Claims Act, the various state false claims acts also forbid companies from harassing or otherwise retaliating against employees. Aggrieved employees are entitled to similar damages as under the federal act.
Anti-Retaliation Rights Under the SEC Whistleblower Program
Dodd-Frank and SEC rules forbid employers from discharging, demoting, suspending, harassing, or in any way discriminating against an employee in the terms and conditions of employment because the employee reported conduct that the employee reasonably believed violated the federal securities laws. Victims of such discrimination are entitled to damages, including double back pay, reinstatement, reasonable attorneys’ fees, and reimbursement for litigation costs.
SEC rules also forbid employers from taking actions to discourage employees from reporting suspected violations to the SEC. The forbidden actions include employment or severance agreements that attempt to discourage or impede an employee’s right to report misconduct, and agreements that attempt to require employees to give the employer notice before reporting misconduct to the SEC.
Anti-Retaliation Rights Under the CFTC Whistleblower Program
Like the SEC Whistleblower Program, Dodd-Frank and CFTC rules forbid employers from discharging, demoting, suspending, harassing, or in any way discriminating against an employee in the terms and conditions of employment because the employee reported conduct that the employee reasonably believed violated the Commodities Exchange Act. Victims of such discrimination are entitled to damages, including double back pay, reinstatement, reasonable attorneys’ fees, and reimbursement for litigation costs.
Anti-Retaliation Rights Under FIRREA/FIAFEA
The whistleblower provisions of FIAFEA also forbid employers from discharging, demoting, suspending, threatening, harassing, or otherwise discriminating against employees for lawful acts done in furtherance of reporting or prosecuting a FIRREA violation so long as the employee was not a knowing participant in the unlawful activity. Aggrieved employees are entitled to reinstatement with the same seniority status, double back pay plus interest, and litigation costs and attorneys’ fees.