If you are considering whistleblowing or have already done so, you are probably in a place you’ve never been before. And, while it may not be a comfortable place, whistleblowing is becoming more common than ever, due to ever-increasing and complex illicit workplace behaviors. The good news is there are legal whistleblower protections that support innocent parties, both the employers and those who work for them.
In the following, we’ll define the coverages, the gaps, the facts, and the misunderstood fallacies about the topic of whistleblowing and detail the optimal time to obtain legal representation when needed. We’ll also discuss tools companies can use to best protect their legal interests by offering specific forms of support for whistleblowers. Finally, we’ll outline steps to take when becoming a whistleblower means speaking to a law enforcement officer rather than a company manager.
What Is A Whistleblower?
What does it mean to be a whistleblower? The definition of whistleblowing is, “a person who informs on a person or organization engaged in an illicit activity. Whistleblowing isn’t a list of employee complaints about the company vacation policy or the lack of advancement in a company. Whistleblowing specifically refers to illegal or unethical behavior by an employer or representative of an employer. There are specific legal parameters around whistleblowing for employees and employers because whistleblowing is a serious business.
Choosing To Be A Whistleblower
The vast majority of whistleblowers do so because it’s the right thing to do. In 2023, as a result of the Whistleblower Program within the US Securities and Exchange Commission (SEC), over $600 million was awarded to 68 individual whistleblowers, each of whom chose to speak up when personal moral strength demanded it. The yearly payout amount is higher than ever before recorded in the SEC, which suggests that, despite government protocols, individuals bent on corruption or unethical behaviors are present, and more individuals are choosing to become whistleblowers by exposing these areas of corruption. Typically, whistleblowing involves a public entity, such as a federal or state governmental department, but whistleblowing may be necessary in public corporations and in the private sector, as well. Let’s look at the facts.
Fact: Many Whistleblowers Are Protected
There are specific laws that protect a whistleblower who speaks out regarding corruption or illicit behaviors in the government workplace. The most well-known law is the SEC Whistleblower Program instituted in 2011. The total payout to individual whistleblowers has been a cumulative $1.9 billion within the SEC system and, as payouts continue, individuals who work within any of the SEC divisions have been encouraged to speak up and do so when illegal behaviors have been observed.
Other laws apply on behalf of whistleblowers, including The Prohibited Personnel Practices Act, Section 5, which protects government employees from retaliation if they become whistleblowers. Several states within the US have anti-retaliation laws if a corporate employee becomes a whistleblower, often including laws within the state labor code. Due to complexity, a whistleblower will want to thoroughly investigate applicable legal protections before whistleblowing.
Fact: Gaps In Whistleblower Protection
Unfortunately, there are some gaps in whistleblower protections. These include such issues as personal retaliation when employees have a relationship outside of the employee-to-employee or employee-to-employer relationship. Some employees, even those within the federal government system, are exempt from whistleblowers, due to the judicial or civil service positions they hold. If you are considering becoming a whistleblower, you’ll want to ensure there are legal protections that cover your position in speaking up.
Fact: Employers As Initiators of Protection
Due to ongoing illegal activities and behaviors that continue despite legal protections, employers are now encouraged to facilitate employee communication that protects anonymity. New software programs have been created that allow employees to speak up anonymously and freely, without the possibility of becoming embroiled in a difficult whistleblower case. Employers who utilize such programs are experiencing lower rates of illicit behaviors, as well as improved levels of communication with employees, as a result.
Fact: The Need For Legal Representation
Although laws or other corporate parameters may protect whistleblowers, individual whistleblowers are encouraged to obtain their own legal counsel and to do so before communicating as a whistleblower. A whistleblower statement is a crucial document that requires careful construction. Obtaining legal counsel allows the whistleblower to position the statement with the highest degree of clarity, ensuring a truth standard that will be difficult to defend by the employer.
Obtaining legal counsel is a wise move for the employer, as soon as being informed of a whistleblower, as well. There have been whistleblower cases created that are personal vendettas by employees, as well as some that are initiated with the hope of a large payout to the individual doing the reporting. Whether the employee or employer, the thorny road of depositions, investigations, and case-building components requires legal counsel for all parties, and the sooner legal counsel is engaged, the better.
Fact: Retaliation And Reprisals Remain
Although there are numerous standards and legal protections in place, the fact remains that retaliation may occur when an employee offers a whistleblower statement. An employer or supervisor may retaliate by reducing the hours or job of an employee, moving the employee to a less desirable position, characterizing the employee as someone unfit or unwell, and making moves against the whistleblower in other ways. Such acts or verbal assaults are meant to demean and badger the employee until the employee leaves or moves out of the department. Reprisals may also take place and occur between a company or department that reports to another entity, only to experience a “payback” in an unpleasant way. Retaliation and reprisals continue to be an unfortunate part of the whistleblower experience. This is a particularly important area for the legal counsel of the whistleblower to step into place.
Fact: Misunderstood Fallacies In Whistleblowing
As with all legal protections and cases, there are misunderstood fallacies, or untruths, about whistleblowing. First, not all whistleblowers receive cash or any remuneration for speaking out. It is important to consider this fact when thinking about becoming a whistleblower because the result could be a lost job and no income until another position can be obtained. Examine any previous whistleblower cases within your department or governmental area before taking the step of becoming a whistleblower. Also, consider the outcome of whistleblowing should you get fired or laid off under false pretenses. You may have considerable trouble obtaining a new position if the word is sent out by bad actors that you’ve “squealed” on your employer. Again, consider such outcomes before speaking up publicly.
Another fallacy is that most illegal behaviors will be found out at some point. The truth is otherwise; with new artificial intelligence techniques and ever-evolving global opportunities, the window to corruption and illegal behavior continues to be wide open. Such fast-paced changes require an ongoing series of checks and balances by employers to protect their employees before whistleblowing is required and, on the other side of the same door, these changes also compel employees to be as watchful and aware of “doing the right thing” on behalf of their employer as ever before.
Take Action: Consult with Schmittinger & Rodriguez Today
If you are contemplating becoming a whistleblower or are navigating the complexities of an ongoing whistleblower case, it’s essential to have the right legal support by your side. The experienced employment lawyers at Schmittinger & Rodriguez are dedicated to protecting your rights and providing the expert counsel you need. Don’t wait until you’re embroiled in legal challenges—reach out to us for a consultation today. We will help you understand your options and guide you through every step of the process, ensuring your voice is heard and your job is protected. Contact Schmittinger & Rodriguez now to take the first step toward safeguarding your future.
