Whistleblowers

A whistleblower is an individual (often an employee) who reports conduct that the individual believes is unlawful activity (like fraud, improper billing practices, unsafe work conditions, or civil rights violations) or activity that threatens the public health (like toxic waste dumping).

There are many federal and state laws that protect whistleblowers. Some laws are general and others cover specific industries. The federal laws include the False Claims Act, Sarbanes Oxley, Securities and Exchange Commission (SEC) and Internal Revenue Service (IRS) whistleblower statutes, and the Whistleblower Protection Act of 1989. The New York State Labor Law also provides whistleblower protection in a broad range of industries. There is also a New York State Labor Law that covers healthcare workers who report substandard patient care. The most common type of whistleblowing case involves a provider’s submission of false claims for reimbursement to government healthcare programs, such as Medicare, Medicaid and Tricare. The government is also very concerned about COVID-19 related fraud, such as obtaining Paycheck Protection Program (PPP) loans under false pretenses; improperly billing for antibody tests; selling counterfeit Personal Protective Equipment (PPE), such as masks and gloves; and other schemes arising from the COVID-19 pandemic. If you become aware of unlawful conduct and want to stop it, you should promptly contact a whistleblower attorney—especially before you quit your job or are terminated, if possible. You may be entitled to a whistleblower award for your efforts.

An employer is not supposed to take any harmful action against you for engaging in lawful “whistleblowing” steps. Such lawful whistleblowing steps include:

1. Conducting an investigation or trying to stop or prevent fraud from occurring;
2. Reporting misconduct internally (within your company) or externally (outside of your company);
3. Filing a formal complaint or starting a lawsuit; and/or
4. Assisting government authorities.

If your employer does retaliate against you for engaging in whistleblowing activity, you should immediately contact a whistleblower lawyer to preserve and protect your rights.

Generally, if you disclose, threaten to disclose, testify in a hearing or refuse to participate in the illegal activity of your employer, you may not be fired, suspended, demoted, have your pay docked or reduced, or otherwise have your employment negatively impacted because of your whistleblowing. Typically, you are protected even if your employer turns out not to have broken the law, as long as you had a reasonable belief that such violations had occurred.

If you prove retaliation in court, you may be reinstated, and receive back pay and financial compensation for other damages. Also, if you prove your employer is committing fraud against the government, you may also be entitled to file a lawsuit against your employer on behalf of yourself and the government. In these so-called “qui tam” cases, the government may or may not intervene, and you may be able to share in any recovery. If you believe your employer or someone else is engaged in serious fraud against the federal, state, city or local government, you should consult an experienced employment lawyer immediately.

How do I know if I have been retaliated against for my whistleblowing activities? 

Retaliation stemming from whistleblowing activities can be very obvious or it can be very subtle. The most obvious forms of retaliation are that you are fired, demoted or refused promotion to a higher paying position; however, here are some examples of less obvious unlawful retaliation:

• You report your employer to officials for unlawfully dumping sewage into the street. Shortly afterward, you are fired.
• You cooperate in an investigation into whether your employer unlawfully dumped sewage into the street and notice that little by little, your hours and responsibilities are reduced and opportunities for advancement are being taken away.

• You have always received outstanding performance reviews. You reported a dangerous working condition to the Occupational Safety and Health Administration (OSHA), which your employer was ordered to fix. Your supervisor tells you that you are being demoted because “you are not a team player.”
• You work for a public company and notice accounting irregularities; you report these to the SEC and cooperate in the agency’s investigation. You become the object of derision and criticism at work, and even begin receiving anonymous threats to your safety.

Legal Editor: Timothy McInnis, January 2015 (updated September 2020)