Excerpt: Saints, Sinners & Heroes by Brian Mahany
11 Step Guide to Whistleblowing
These 11 simple steps can help you maximize any reward and protect you from retaliation.
Call a Good Whistleblower Lawyer Immediately.
Before you do anything else, find a good whistleblower lawyer that both understands whistleblower cases and has a good track record. That means not being shy about asking your lawyer to discuss his or her track record, experience, willingness to try the case if the government declines to prosecute and how much he or she charges. (Whistleblower cases are typically handled on a contingency or “success” fee basis meaning the lawyer earns nothing if you do not get an award)
Why is getting a good lawyer so important? Getting an award can be a complex process filled with potential pitfalls. A good lawyer will make the process much easier. For example, there is a “public disclosure” bar in many whistleblower statutes. Brag to friends and you may not get an award. Thinking about taking documents from your workplace? Again, some states say that is illegal. You need good advice from an experienced lawyer from the first.
Many lawyers are willing to take a whistleblower case but only a handful truly concentrate in this area of law. You wouldn’t want your family doctor performing complex surgery on you. So why would you want the local personal injury lawyer handling a complex whistleblower case?
Most whistleblower awards are based on first to file their claim. Tell others about what you are doing and they may file a claim first, cutting you out of an award. This happens surprisingly often because of the potential size of a cash reward.
Some whistleblower laws also have a “public disclosure” prohibition. That means telling anyone could jeopardize your claim.
Depending on the type of claim, many courts have a sealing order issued by a judge meaning that you could be sanctioned (fined, jailed, or other punitive action) and your claim dismissed for breaking confidentiality.
You may really want to spread the word about your story but our advice to keep quiet includes talking to the press. There is no such thing as “off the record.” Let’s repeat that, there is no such thing as “off the record”.
Do Not Call Government Agencies First
The IRS, SEC, Medicare Fraud agency and many states operate a multitude of hotlines. Some employers do as well. Reporting fraud to those hotlines first may help protect you from a retaliation claim but it won’t get you an award.
See Rule No.1 above; always talk to a lawyer first. There is a specific process that must be followed with each of the above agencies. If you report your information directly to them, you will miss out on a reward. They may mention a reward, for instance there may be a $1000 reward offered for Medicare Fraud but they won’t mention the amount to you and you might be missing out on a million dollar opportunity. Start with a lawyer. Go from there.
Be Prepared to Prove Your Case with Evidence or Witnesses
Whistleblower cases need to be based on facts. Rumor and speculation aren’t enough. Consider how you can prove your case. Document everything and quietly obtain names and telephone numbers of potential witnesses.
It isn’t unusual for companies to suspect would–be whistleblowers. Although often not fired because of anti-retaliation laws, you may find yourself suddenly on paid leave with no access to your computer or records. Once that happens, it is too late to gather records to prove your case.
A good lawyer can help you determine what you should or should not take. As a general rule, don’t break the law and steal documents. If you have a question, wait until you have retained counsel.
As a general rule, we don’t recommend emailing yourself massive amounts of documents either. Many companies have sophisticated IT programs that look for possible whistleblower activity by monitoring emails being sent to home email addresses.
Plan for the future
Although the United States federal government and many individual states have very strong anti-retaliation laws, those don’t offer much immediate comfort if you suddenly find yourself without a job. Most judges do a great job protecting workers and enforcing anti-retaliation laws but those court battles can take years. Have a plan in place to support yourself and family in case you are the target of retaliation.
Even without retaliation, whistleblower cases can take years. Some IRS whistleblower cases, these take the longest, have been known to take a decade.
Plan for a New Job
Although we think whistleblowers are true heroes, once you are outed it may actually be more difficult to find a new job. The time to think about career changes is while you still have a job.
Although it defies common sense, some whistleblower clients email us from work computers or call from work telephones. There is little expectation of privacy and little legal protection of that privacy when you use a work computer, company telephone or your employee email address.
The same thing can be said for maintaining a hard copy whistleblower file in your office. If you are escorted out the door, there won’t be time to grab your files.
Prepare in Advance for the Day you are Outed
Depending on the type whistleblower case, you may go through life and never be outed. Some cases make it from beginning to end in complete confidentiality.
However, we prepare our clients for the probability their identity and whistleblower status will become known. Some colleagues will ostracize you. You may be the subject of retaliation which can be workplace harassment or firing.
Other friends will be unsure how to act. You may get calls from media. Discuss these scenarios with your lawyer well in advance of the day it happens. Often a whistleblower is outed without warning.
Do Not be Offended When Your Lawyer Asks Hard Questions
In essence you and your lawyer are becoming partners in a process that could take years. By asking tough questions, your lawyer is trying to find weaknesses in your case before the other side does.
Do Not Spend Your Award Money Before it is Received
We have seen great cases fall apart on technicalities and other cases fall apart because the defendant files bankruptcy. Even if the government intervenes in your case, the case isn’t over until the money is in the bank. Your bank!
Do Not Sign Anything before Talking to a Whistleblower Lawyer
Sadly, many people don’t consult with us until after they have been terminated. Most whistleblowers aren’t interested in award money as much as they are fixing a bad practice or fraud at work.
When they make waves, however, they are often “rewarded” by being escorted to the door. To make matters worse, some unscrupulous employers add language to severance deals that preclude workers from receiving whistleblower awards.
A company can’t prevent you from reporting fraud but it may be able to stop you from receiving all the benefits of our many whistleblower laws. That is why it is essential to speak to a lawyer immediately.
I wish I could tell you the “bad guy” always goes to jail or is punished. That doesn’t always happen in the real world. But by stepping forward, you are making a real difference.
It’s hard to feel good while the case is under seal (the court orders all parties to say nothing to anyone with some pretty severe penalties if they do) and you can’t defend yourself against innuendo or outright falsehoods. Don’t despair. That is usually just temporary and in most cases TRUTH does prevail.
Above all else, keep the faith! Virtually every whistleblower we have represented said the process was more difficult than anticipated but those same folks said they would do it all over again. What you are about to do will test your strength and emotional reserves, but reporting and stopping fraud is the right thing to do. People who do the right thing are the backbone of a good society.