5 Things to Know Before Blowing the Whistle on Wrongdoing in the Workplace
Based on newspaper headlines and classic movies, an undeniable glamour seems to accompany being a whistleblower. Think of the parking garage meetups in “All the President’s Men”—or the idea that your story might someday be portrayed by Julia Roberts, á la “Erin Brockovich.” The reality, however, is a bit grimmer. Before you blow the whistle, you need to do some hard thinking. Here are five things to know before taking the leap.
1. The definition of “whistleblower” is specific
Generally speaking, the National Whistleblower Center—a nonprofit that assists whistleblowers around the world—defines “whistleblower” as “waste, fraud, abuse, corruption, or dangers to public health and safety to someone who is in the position to rectify the wrongdoing.” Within that general definition, however, are many legal specifics. Your definition of “waste, fraud, abuse, corruption, or dangers to public health and safety” might not match that of federal or state law.
2. Protection from retaliation is only available under specific federal, state, and local law
An employee who reports wrongdoing is only protected from employment retaliation if their situation meets specific procedures and timelines as outlined in applicable federal, state, and local laws. These laws may cover everything from the types of whistleblowing protected under the law to the statute of limitations for reporting alleged retaliation resulting from a report.
The first whistleblower law in the United States has been on the books since 1863, with several updates since President Abraham Lincoln first signed the False Claims Act into law to address military supplier fraud during the Civil War. The False Claims Act includes a qui tam provision that allows an individual or nongovernmental organization (NGO) to file lawsuits in U.S. district court on behalf of the federal government and receive a financial reward when successfully reporting fraud that has cost the government money.
Other federal laws cover whistleblowing related to securities and commodities (the Dodd-Frank Act), wildlife protection (the Lacey Act), tax evasion (IRS Whistleblower Law), and maritime pollution (Act to Prevent Pollution from Ships). Employees are also protected from retaliation for making claims to the Equal Employment Opportunity Commission (EEOC). State and local whistleblower statutes vary across the United States.
The key takeaways from this information: You might not be protected under federal, state, or local law for reporting every type of wrongdoing you might wish to report, and whistleblower statutes often contain specific provisions related to how you make reports and deadlines for making reports.
3. “Retaliation” also has a specific definition.
A layperson likely defines “retaliation” as “revenge,” but the law has a more specific definition. The U.S. Department of Labor defines “retaliation” as an employer’s adverse action against an employee for engaging in a protected activity, which includes whistleblowing related to federally protected issues. Adverse actions include termination, reducing hours or pay, or denying overtime or a promotion.
The critical lesson here is that “retaliation” and “adverse action” have specific legal definitions that may not match your personal definitions. If you file an EEOC claim against your supervisor, you will be legally protected from being terminated for filing that claim (and, realistically, your employer probably won’t want to pursue terminating you for another reason). But you will not be legally protected from feeling uncomfortable in interactions with that supervisor going forward. Discomfort does not equal adverse action.
4. Employer-provided means for whistleblowing should be approached with caution.
Your employer may have an anonymous hotline or other means of reporting violations of law. Two key things to remember: 1) You may have a statutory obligation to report the violation directly to a governmental authority, especially if you are reporting instances of child or elder abuse; and 2) your employer’s goal is to protect itself, not the whistleblowing employee. You may not have legal protection from retaliation if you opt to report internally vs. through the government.
5. Once you blow the whistle, you can’t undo it.
Before you blow the whistle, make sure you understand that you are taking a path of no return. It may be the right and moral path, but it will likely be lonely and uncomfortable. Before you take the leap, it’s a good idea to consult with an employment attorney so you have a full understanding of any potential legal protections.