When to Call an Attorney as a Whistleblower

Whistleblowing, or reporting wrongdoing in upper management, the government, or the public, is an important part of our justice system. While being a whistleblower might seem daunting, there are laws to protect whistleblowers from retaliation. Despite these protections, whistleblowers can still face retaliation in the workplace. Here’s what you need to know if you are considering whistleblowing, including some of the most important laws and when to call an attorney.

The Georgia Whistleblower Act

For public employees in the State of Georgia, the Georgia Whistleblower Act is a powerful tool against public corruption. The Act prohibits any public employer, which includes any agency of the State, counties, or cities, or any local or regional governmental entity that receives state funding, from retaliating against an employee.

Retaliation is defined as discharging, suspending, demoting, or taking any other adverse employment action against an employee because she or he disclosed violations of any laws, rules, or regulations, or refused to participate in some activity that she or he reasonably believed was illegal.

The damages available for whistleblower retaliation are substantial and include lost wages, reinstatement or front pay, unlimited compensatory damages, and reasonable attorney’s fees and costs.

The Sarbanes-Oxley Act and Murray v. UBS Securities LLC

The Sarbanes-Oxley Act (SOX) established robust anti-retaliation provisions prohibiting publicly traded companies from taking adverse actions against employees (current, former, and contract) who report, in good faith, suspected violations of securities laws or criminal fraud. SOX includes protecting whistleblowers who report:

• Misleading financial statements or accounting,
• Wire or bank fraud,
• SEC violations,
• Environmental practices violations
• Suspected accounting irregularities,
• Insider trading, or
• Other schemes that harm investors.

These whistleblowers are protected against retaliation such as actions to discharge, demote, suspend, threaten, harass, or discriminate in any other manner against an employee against protected whistleblowing reporting.

SOX was passed in 2002 in response to high-profile scandals at companies like Enron. But an employee whistleblower couldn’t win a whistleblower case just by reporting wrongdoing. Under SOX, a whistleblower had to prove that they had seen wrongdoing and violations and that their employer retaliated against them because of this. The “retaliatory intent” requirement was often hard to prove, as proving motive can be difficult and whistleblowers may not have access to such documents or proof.

However, a recent unanimous ruling by the Supreme Court of the United States upheld Murray v. UBS Securities LLC and rejected the need for whistleblowing employees to prove that the employer planned to retaliate against them. Now whistleblowers only need to show that their reporting of wrongdoing was a “contributing factor” in the employer’s decision to take unfavorable personnel action against them. This clarified the burden of proof and made it decidedly pro-employee, lessening the burden of proof for SOX retaliation claims. The Murray v. UBS Securities LLC ruling only applies to claims made under SOX, but it is a great result for employees and will make it easier to prove SOX violations and hold employers accountable.

Dodd-Frank Wall Street Reform and Consumer Protection Act

Another important act in protecting whistleblowers is Dodd-Frank. In response to the 2008 financial crisis, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was passed in 2010. It expanded whistleblower protections made under SOX, allowing for protection for employees (current, former, and contract) of most financial institutions, not just publicly traded companies. Examples include employees at banks, investment firms, hedge funds, and insurance companies. It also:
 

• Increased the financial incentives for whistleblowers who had information that led to wrongdoers being held accountable, usually between 10% and 30%;
• Expanded consumer protection violations of reported wrongdoing to include mortgages, credit cards, and other financial products as well as general harm to consumers;
• Offered reporting to a wider range of channels, such as the SEC and directly to Congress;
• Allowed anonymous reporting to qualify for protection and potential monetary rewards;
• Expanded retaliation protections to include reporting as well as assisting in investigations or legal proceedings; and
• Created the SEC Whistleblower Program, a formalized way to receive wrongdoing reports, investigate them, and reward successful whistleblowers with bounties.

The False Claims Act

The False Claims Act is a law with deep legal roots. It was originally passed during the Civil War to stop contractors from defrauding the federal government by selling faulty rifles or sick horses and getting full price. The False Claims Act makes it illegal to submit false claims for payment or reimbursement to the federal government or to submit other false information to the government. The Act also allows someone who knows of false or fraudulent claims being submitted to the federal government to sue on behalf of the government to recover those damages plus penalties and get a percentage of the recovery as a reward.

But the False Claims Act also contains a whistleblower provision. That is, someone who blows the whistle on the type of fraud against the federal government that the Act prohibits can sue if they are retaliated against for that whistleblowing. Examples of situations include:

• Employees of healthcare providers or clinics that submit fraudulent bills to Medicare or Medicaid;
• Employees of federal contractors who submit false billing documentation for work they are supposed to perform for the government;
• Employees of companies that submit false information to secure grants or other awards of funds from the federal government.

The damages available to employees who blow the whistle on this kind of fraud include lost wages, plus an additional equal amount, special damages, reasonable attorney’s fees, and costs of litigation.

Why whistleblowers need experienced attorneys who specialize in this area of law

Whistleblowing is a necessary action to take to hold employers accountable for wrongdoing that might harm the public. However, it can be extremely complex and difficult to navigate. The attorneys at Beal, Sutherland, Berlin & Brown are experts in this area. We can help guide whistleblowers through the correct channels and can offer them a higher chance of success in protecting themselves and receiving damages owed. You don’t have to wait until you’re facing retaliation to contact an attorney; the earlier in the process one is brought in, the better. Additionally, the experienced whistleblower lawyers at Beal Sutherland Berlin & Brown can:

• Help ensure rights are protected under SOX and Dodd-Frank;
• Help ensure evidence is collected and documented correctly;
• Fight back against any retaliatory actions from an employer;
• File complaints or report to multiple channels, build a case, and advise on investigations;
• Advise on how to maintain confidentiality if desired;
• Negotiate claims, settlements, and reinstatements; and
• Maximize potential financial rewards and calculate damages.

We can help you get the justice and compensation you deserve as a whistleblower. Contact us to schedule a consultation.