Whistleblower protection laws are very clear: no public or private employer can take “adverse action” (or retaliation) against workers who report dangerous or fraudulent activity. Yet most potential whistleblowers do worry about what will happen at work when they speak up—and they should.
Despite extensive whistleblower protection policies, retaliation at work against whistleblowers is very real. Whistleblower protection laws can only protect you if certain conditions are met and the compensation the False Claims Act provides against retaliation can feel like small comfort compared to the potential real-life consequences.
Yes, the personal and financial rewards of a successful whistleblower case do come with significant risk of retaliation but that risk can be minimized with smart, strategic advance preparation. Before you blow the whistle, you need to have a retaliation protection plan in place to protect you.
- HOPE FOR THE BEST BUT PREPARE FOR THE WORST.
Yes, it’s hokey—and yes, it helps. In the best-case scenario, you will be a hero. Your company will be happy to know what is wrong and eager to acknowledge and fix the problem. It could turn out that way … but it probably won’t.So start getting ready for the worst-case scenario. The moment you blow that whistle, brace yourself to get fired. If you reported the wrongdoing anonymously, get ready to have your identity revealed (and ridiculed). Assume you will be escorted out of the building and don’t expect to get back in anytime soon.Don’t tell any colleagues about your plan to blow the whistle or seek whistleblower protection no matter how sympathetic they seem to be. Before you speak out, it is usually best to remove personal effects from your office, back up vital evidence at home, and organize your finances for what could be a rocky road ahead.
- GET A LAWYER.
Can you sue your employer for unfair treatment? Yes, but you will need experienced legal representation if you want to win. It is tough to protect yourself without an experienced workplace retaliation attorney by your side. Whistleblower retaliation cases only lead to whistleblower retaliation settlements if you can prove a connection between your bravery and your employer’s bullying. A good lawyer will know the False Claims Act, the Dodd–Frank Wall Street Reform and Consumer Protection Act well and will help you navigate the emotional, financial and legal pitfalls ahead.
- LET YOUR LAWYER DO THE TALKING.
Once you blow the whistle on your workplace you should be very, very quiet at work. Seemingly innocent conversations or negotiations can be designed by company lawyers to trap you into incriminating or conflicting statements. The easiest way to avoid these pitfalls is to let your lawyer speak in your stead.Let your lawyer negotiate your severance package, never EVER sit down with company representatives without your lawyer by your side, and check with your legal team before participating in or responding to internal investigations, composing and sending emails, or documenting conversations.Assume that your company will track everything you do and say once you say what you have seen. Remember: “you will have to ask my lawyer.”
- BE FAST, BUT NOT FURIOUS.
It is always best to be the first person to report fraud at your workplace. Being the first or the only employee to make a submission lets you reap the largest rewards. The rush to be first, however, should never keep you from doing things the right way. Before you blow the whistle with a qui tam submission, you should make a good-faith effort to fix the problem internally if at all possible. Yes, if the company self-reports and self-corrects you can lose out on the chance to benefit financially from your bravery and honesty. But whistleblowers often walk a very hard road. If you can fix the problem without needing to worry about invoking a whistleblower protection policy, why wouldn’t you?That said, if you call attention to the problem, your company can choose to correct the problem internally and still find a way to fire or harass you. This is the worst possible scenario—all the risk and no possible reward—so talk to your attorney about retaliation protection before deciding what you want to do.
- GATHER EVIDENCE CAREFULLY.
Evidence is critical to a successful whistleblower case. Evidence gathered illegally won’t help you, however, and can hurt you and your case.Yes, tapes are great evidence. But despite what you have seen on TV, getting a taped confession can get you in a lot of trouble. In many states, it is illegal or even criminal to secretly record a conversation. (It’s also very hard to do without getting caught and blowing your cover completely.)Yes, documents are also great evidence. But one of the biggest way companies retaliate against whistleblowers is to sue over stolen documents or breaches of confidentiality. Hacking into protected networks or breaking into your boss’s office is never a good idea. If you gather documents only through your typical work responsibilities and make copies of key documents—leaving the originals in their proper place—it will be hard for the company to successfully sue you for stealing documents.Did you know personal journals are great evidence, too? Simply writing down your version of past events and recording new ones as they happen can make a big difference in court.
- GET ANOTHER JOB.
Not every attorney will tell you this, but in almost every circumstance it is in your best interest to find a new job before you report the fraud at your current one by filing a qui tam case. Don’t stay in a stressful, unstable employment situation and expose yourself to workplace retaliation just to gather further evidence. Once you speak up your access to quality evidence will most likely dry up. While you can’t be fired from a job you have already quit, watch out for attempts to smear your reputation or sabotage your new employment. Interview for a new position before your employer can sabotage your recommendations and screw up your future employment prospects.
There’s a lot more Tim can do to protect you from whistleblower retaliation. Tim McCormack has protected his clients from workplace retaliation in high-stakes whistleblowing cases all around the world. Call 207-747-7639 or submit a case evaluation form to schedule a free, no-obligation, and completely confidential whistleblowing case review today.