You have learned of serious misconduct within your organization that has been overtly or tacitly approved by high-level management. You have alerted those above you –or outside counsel– about the misconduct or have tried your best to put a stop to it. But neither has worked. You are appalled by what you have witnessed and may even be concerned with being held accountable if and when the misconduct gets exposed and turns into a civil or criminal action. You understandably are worried about your reputation, both professionally and personally. You’re near the end of your rope. Perhaps, you’ve even spoken out so vehemently that you’ve already lost your job.
Now the question is: what, if anything, should you do about taking your information outside of your organization, by reporting it to the authorities, filing some type of whistleblower action or going public directly to the news media? The thought keeping you awake at night is whether you should blow the whistle against your own employer (perhaps only anonymously) or just keep quiet? This is not an easy question to answer. There is no single right answer for everyone. There are compelling pros and cons for either decision. And, there can be a lot of uncertainty and intangibles to weigh. However, based on our experience and knowledge of whistleblowing, we can at least share some information to help guide you through this difficult process.
First of all, you might not have the option of becoming a whistleblower. There may be state or federal laws that specifically prevent you from being a whistleblower, because of the nature of the misconduct, the industry in which it occurred and/or your position and responsibilities in the compliance area.
For example, the federal IRS, SEC and CFTC whistleblower statutes have provisions that could tie the hands of compliance personnel who seek to become whistleblowers. Similarly, the anti-retaliation provision in the federal False Claims Act (and the many State false claims act laws) may not be applicable to you because of your duties to investigate and report misconduct. There also may be contractual restrictions on your ability to become a whistleblower. You may have signed an employment or severance agreement which attempts to prohibit, impede or somehow limit your right to blow the whistle against your organization, or at least, prohibit you from sharing in any whistleblower reward if you do. Finally, there may be statutory, judicial or contractual prohibitions on your ability to obtain or reveal confidential and/or privileged information needed to corroborate your whistleblower allegations.
Benefits of “Doing the Right Thing”
So, what are some benefits of being a whistleblower? First and foremost, you may end up doing something truly remarkable, such as save a life or safeguard someone’s health. You may protect some aspect of the environment, preserve scarce financial resources or affect widespread change in your industry.
Another incalculable whistleblower benefit that comes to mind immediately is that you may be able to avoid becoming the target or subject of a governmental investigation or criminal case.
Above all you will have the satisfaction of knowing you did the right thing ethically, morally and professionally, maintaining and enhancing your reputation for honesty and integrity. And, depending on the type of misconduct and applicable laws, you may be rewarded financially for having come forward with your information. Sometimes the amount of that award can be very substantial.
The “Down Side” of Whistleblowing
How about on the other side of the ledger, the down side? You are bound to encounter hostile reactions from the people you have exposed and, occasionally, from judges, juries and even the governmental authorities you have tried to help. You may lose your job, if you haven’t already, or be ostracized and marginalized at work. If you do leave your position or lose your job, you may be blackballed from future employment in your industry.
Additionally, the governmental authorities may never investigate your allegations (or do so inadequately), they may take seemingly forever to follow up on your information, or they may never be able to corroborate your claims. Most likely you will have ceded to the government attorneys control over the outcome of any legal proceedings; and you may be hugely disappointed in the final outcome of the matter, including the penalty exacted from your employer and the amount of any compensation for you. You may also have to fend off a counter suit by your employer.
Furthermore, any award to you will most likely be reduced by attorney’s fees and expenses, and may well be subject to income taxes. There’s even the chance that an anticipated award will be lost entirely because your employer ends up in bankruptcy or otherwise is unable to pay anything back to the government, which is usually a prerequisite to a whistleblower receiving compensation.
Finally, you will likely feel tremendous pressure and stress from a protracted process, which may even be subject to a court order that prevents you from discussing the matter with anyone other than your attorney. This, as well as financial hardships, can test even the best of marriages, friendships and other personal, social and professional relationships.
What Steps Can You Take?
So what can be done to increase the pros while minimizing the cons of whistleblowing? Consult an experienced whistleblower attorney early on. Get some assurance as to whether you even have a viable case and obtain an assessment of the possible upsides and downsides. Moreover, there are often choices among tactics and strategies that can be tailored to your specific needs and concerns.
For example, there may be different whistleblower laws to choose from, different governmental agencies to present your information to, a variety of courts to file a case in and different techniques for shielding your identity. In some cases you may be able to file under more than one law. It is therefore important for you to look for an attorney who will give you sound advice, diligently pursue your legal and financial interests and be mindful of your needs as a person.
Also, place a high premium on your prospective attorney’s history and reputation in dealing with governmental authorities. Your attorney’s ability to effectively communicate with the government — one-on-one and in court, if necessary, can often make the difference between the success or failure of a whistleblower’s case. Remember most of all: your association with your whistleblower attorney is likely to be a long-term partnership. So choose wisely.
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About the Author
After prosecuting major federal fraud crimes as an Assistant United States Attorney in the District of New Jersey, Timothy J. McInnis, Esq. established a New York City-based law practice focusing on whistleblower and employment retaliation matters in 1999. Among the full spectrum of federal, state and local whistleblower and qui tam cases handled across the U.S. by McInnis Law are qui tam whistleblower actions, retaliation cases (including Sarbanes-Oxley) and employment wrongful termination lawsuits. In recent years, McInnis Law, has handled whistleblower suits involving fraud in: Medicare, Medicaid, FHWA, SBIR grants, NIH research grants, Education grants, Government funding of state programs, and Employment retaliation cases affecting whistleblowers. Among cases that have been successfully resolved by McInnis Law (found at http://www.whistleblowerlegal.com/rc.html) are several compliance-related matters including the – recently settled cases involving the Association for the Help of Retarded Children (AHRC) in New York and Atlantic Health System in New Jersey.