If you are thinking about becoming a whistleblower there is a lot to think about. They are complicated laws, and it is a difficult process. Here are ten mistakes that whistleblowers often make.
My name is Tim McCormack, I am the author of The Whistleblower.com blog about whistleblower issues. I am also an attorney. I’ve represented whistleblowers for more than a decade across the United States and around the world. Today I want to talk about top 10 mistakes that whistleblowers often make either before they file their case or in the process of their case.
#1 Don’t Trust Anyone
The first mistake, an overarching mistake, is trusting people. I know that sounds bad but trusting the people that you work with or trusting the company that you worked with. This can be hard because most of my clients they have a lot of faith in the company they’ve been working with. They have been with them for quite some time and they believe in the mission and they’ve been working with people, their former co-workers, maybe still their current coworkers, and recognizing that when you blow the whistle most of those people are going to turn on you is tough.
It sounds cynical but sadly it’s true the number of times where clients have come in and said well X, Y, and Z person will back up my story and the reality is when push comes to shove, it’s not that they are bad people but they need to keep their job, they face incredible pressure from the company and the bottom line is most of those people will maybe not stab you in the back but they certainly won’t back you up. The company, unfortunately, profit is a really strong motivator and when fraud is going on usually it is because the company is making money through that fraud, so believing that the company is the standby you to try and fix it is often a mistake.
#2 Don’t Trust Anyone, Except Your Lawyer
In a related vein, a very common mistake that whistleblowers make is they try to go it alone in dealing with the company. Having someone with you especially an experienced lawyer to navigate this process, you cannot overstate how important that is. Things that you might think should be easy won’t be. The company may ask you to come in for an interview and next thing you know you’ve told them everything in good faith hoping they would fix it, and the next thing you know you’re trying to blame it on you.
They ask you to share your evidence with them, your documents that support your concerns and down the road, if you file a case it turns out everything that you didn’t share with them, all of a sudden disappears because the company thinks that if you don’t have it the government will never find it. Or another one, and this is sad to see when it happens, whistleblowers have gone to the company and said:“Look I don’t want to be a big problem.
I know that because I’ve raised these concerns that I’m not welcome here anymore. Let’s see if we just resolve this and we will both go our separate ways.” Next thing you know the company is saying that you try to extort them, that you demand an unreasonable amount of money in order for you to agree not to report the fraud, where in fact what you were really trying to do is be helpful and just move on with your life. Even if a company is trying to do the right thing, having a lawyer by your side to help you navigate the process cannot hurt and the reality is it helps, and it helps a lot.
#3 Don’t Talk To Anyone, Except Your Lawyer
Another common mistake that whistleblowers make is they talk to a lot of other people especially the press about their concerns. Talking to press, the press can be valuable and important part of correcting injustice, but as a practical matter, there are two things that that can happen to you by talking to the press. One, it can hurt, if you ultimately want to file a whistleblower case. Talking to the press can hurt that case in ways that a lawyer could explain to you. The more pragmatic consequence of talking to the press or talking a lot of other people is the company could learn that you’re thinking of blowing the whistle and then they’ll retaliate against you.
The more people who know you are thinking of blowing the whistle the more people who might tell the company and the more likelihood the company might retaliate against you. Another consequence or another possibility is that if you tell someone else, under the various whistleblower statutes and programs generally speaking the first person to file a claim, if there is a recovery that person gets the [reward for that] recover. If you tell someone else that you are thinking of filing a whistleblower claim they could rush to the courthouse and file one first and preempt you.
#4 Even With A Confidentiality Agreement You Can Ask A Lawyer
Another very common mistake that the whistleblowers make is they are scared to talk to a lawyer about their concerns because they’ve signed a severance agreement and the severance agreement has pretty frankly scary language about what will happen to you if you tell anyone anything about what happened at the company. A lot of those severance agreements and those kinds of gag order provisions are frankly illegal. But as a practical matter if they have the effect of keeping you from talking to a lawyer then they served their purpose.
So even if you’ve signed a severance that says you won’t talk to anyone about what happened you should talk to a lawyer if you have concerns about that. You should talk to a lawyer about whether a severance agreement like that is even enforceable. Public policy, and because of that the law, generally favors whistleblowers reporting fraud, favors the government learning about fraud so they can fix it. For that reason, a lot of provisions in severance agreements that try to keep whistleblowers from reporting fraud are illegal and won’t be enforced by the courts.
#5 Don’t Talk About Whistleblowing On Company Email Or Phone
Some practical mistakes that whistleblowers make, the next one is don’t use company e-mail or company cell phone or other company resources to talk to your lawyer or the press, who you shouldn’t be talking to before talking to your lawyer anyway, or anyone else about the fact that you might become a whistleblower. Any trail like that that you leave, the company may discover it at the time, and then fire you or retaliate. Or as a practical matter, if and when the company learns that there’s a government investigation even if they don’t know there’s a whistleblower they’ll start looking for whistleblowers and they’ll go through your e-mail and they’ll go through your phone records and they’ll find that, and then the retaliation starts.
#6 Don’t Leave Anything Valuable In Your Office
Another practical thing is once you decide that you are even thinking of becoming a whistleblower don’t leave anything valuable in your office anymore. Don’t leave your important evidence, don’t leave your computer files, but also don’t leave any pictures of your kids, any things that you have you can afford to lose. As a practical matter once you think that you might become a whistleblower you should expect that any time the company could find out, escort you out of your office, and not let you take your stuff. You may or may not get it back later.
#7 Don’t Expect a Quick Settlement
Switching gears, a common mistake that whistleblowers make is when they think about the process of blowing the whistle and how they are going to survive the process, get a new job, financially support it, are they assume that the company, once they hear the government is investigating, will settle quickly. I can’t count the number of times that someone has come in and said: “The company won’t want the bad press. As soon as they hear about the investigation, they will want to settle it and they will settle fast. That almost never happens. A fast whistleblower case is three years. Far more likely is five years, seven years, 10 years. If you’re thinking about blowing the whistle and filing a whistleblower case, you need to think about the long haul.
#8 Get A Lawyer With Whistleblower Experience
The last three issues have to do with lawyers, who you hire as a lawyer and how that process goes. One of the biggest mistakes that whistleblowers often make is they hire a lawyer who has no whistleblower experience or no substantial whistleblower experience. Whistleblower law is a very specialized area of the law and it requires a different skill set and a different level of expertise than other areas. You really, if you’re gonna put your case in someone’s hands, especially given how long these cases are, you want someone who has substantial experience in whistleblower law.
#9 Sooner Rather Than Later
Another mistake, and a related mistake, is if you hire someone who doesn’t or if it turns out that they don’t have as much as you thought they had, if you want to shake up your team and that doesn’t necessarily mean firing your first lawyer, it might mean just adding a lawyer with more specialized expertise to your team, the time to do that is early. Very often I’ll get a call from someone who their cases have been filed for three or four years, they’ve now learned that the government is not planning to join the case, things are not going great and they’re looking to change their team. At that point, it’s really difficult, almost impossible, to change the trajectory of that case. You can go forward without the government, and you can litigate it, but those cases are a lot more difficult to win. If you have any concerns about how the case is going, the time to think about rejiggering your team is earlier rather than later.
#10 Don’t Pay Hourly Fees To A Whistleblower Lawyer (Unless they only represent you on employment issues)
The final mistake that whistleblowers often make with respect to their lawyers is they pay them an hourly fee. The whistleblower lawyers who do this, who specialize in this, almost all work on a contingency fee basis, which means you don’t pay anything unless you win your case. Attorneys who charge by the hour for whistleblower work are almost always attorneys who either don’t have much experience in this and that is just how they do their other work or often they are defense lawyers who, defense lawyers tend to charge by the hour, so that’s just what they do, and that is doubly bad because not only are they charging you upfront fees but defense lawyers generally, not all of them, but generally are inclined to look for reasons why a case won’t work rather try and think about how to make your casework.
This video has provided an overview of some complicated issues. If you need legal advice and want to talk through whether you have a whistleblower case, please contact me for a free, confidential consultation.