As a whistleblower or potential whistleblower, you face difficult personal and legal decisions. Often these decisions present themselves in stressful and time-sensitive situations. What you do, or don’t do, can have a significant impact on the ultimate outcome of your case, as well as on your future. Here are our “Top Ten” tips for you.
You should contact an attorney experienced in whistleblower laws to get advice before making any major decisions such as quitting your job, discussing the problem with others, etc. Your employer has the upper hand, and these are difficult waters to navigate without the proper guidance. You need to know your rights. We encourage you to pick up the phone and call us or fill out our questionnaire and email us. It is confidential and free.
Employers typically require a terminated employee to sign a severance agreement in return for severance pay and benefits. These agreements contain provisions where the employee releases the employer from some or all claims the employee may have. Depending on the wording, such a release may include a whistleblower action under the False Claims Act or another program. Some federal and state laws prohibit such releases, but they nevertheless present a significant risk to your rights. Get advice before signing.
Recognize that complaining, even to compliance, may in some circumstances put a target on your back and result in retaliation or termination. Where fraud is ongoing, it can be more valuable to the government if you stay quiet and gather information as an insider. In some circumstances, you can help the government obtain important evidence by, for example, monitoring phone calls and meetings. Again, seek advice about what steps are appropriate.
You will need solid evidence of the fraud, which often is found in documents that are the property of your employer. What you are allowed to take to support your case is a complex question that requires careful scrutiny. Employers often argue that whistleblowers who take documents or other evidence have stolen corporate property or trade secrets or violated patient privacy laws. In general, the public interest in stopping fraud and other wrongdoing usually overrides an employer’s property interest in its documents and secrets. There are important exceptions, however, including documents protected by attorney-client privilege and patient medical records, so we recommend seeking the advice of an attorney.
Today’s technology makes it easy to use your phone or other devices to record a conversation, and such recordings can be powerful evidence of fraud. State laws, however, prohibit recording conversations in some situations and violating those laws can expose you to civil and even criminal penalties. The question of whether one is allowed to tape conversations without the government’s authorization is a difficult one. As with documents that aren’t yours, proceed with caution and get advice first.
Some of the most important evidence of the fraud may be in your documents or recordings or in conversations you have heard. You need to preserve it all. For example, your cell phone, laptop, and other devices will contain evidence, from emails to text or instant messages to videos or recordings. Be sure to retain and back up that data. Sometimes, your evidence is on company-issued devices — ideally, you will find a way to keep such information even if the company takes back your device. Conversations may be fresh in your mind now, but these cases can last years. Your memory may fade, so make a contemporaneous record of what happened, who said what to whom, etc.
Don’t talk to others or post on social media or industry message boards about the nature of your concerns. These kinds of casual communications can have consequences that you may not be aware of. For example, you might put the idea of whistleblowing into the head of another individual, who ends up filing a case ahead of yours and thus becomes “first to file.” Or, defense lawyers for the company could later argue that the matter in question was already “publicly disclosed” and your claim is therefore barred. There is nuance to these questions, of course, and no two situations are alike. Proceed with caution and get advice.
If you are going to bring a whistleblower case, time is of the essence for several reasons. First, whistleblower laws typically have a “race to the courthouse” or “first to file” rule — the first one to file is the one who gets the reward. Second, a whistleblower who files first may still be barred from recovering a reward if the allegations had previously been “publicly disclosed,” for example, in the news media or a government investigation. Finally, fraud statutes generally contain a “statute of limitations” that requires the misconduct to be prosecuted within a certain period of time. It is best to file as quickly as the theory and evidence can be adequately evaluated by your attorneys, disclosed to the government, and – in the case of the False Claims Act – filed with the court.
The whistleblowers who have the most difficult time with the process are those who expect quick and decisive results. The wheels of justice turn slowly. Despite many protections under the law, whistleblowers have very little control over the process. The government is the real party in interest in False Claims Act cases, and its attorneys control the status of the case, not the lawyers for the whistleblower. So buckle up and be ready for a long journey. It can be a satisfying and vindicating journey in the end, but it is never speedy or smooth.
As a client, you are part of a team. What happens to you affects your attorneys and your case. Being a whistleblower can be lonely and stressful. You may be embarrassed that you posted on social media when you should not have, that you found exculpatory documents in your garage and forgot to tell us, that you are in financial difficulties, having trouble finding a job, seeking help or medication for mental health issues, drinking too much red wine, or facing marital stress. Whatever it is, tell us so we can help you. We then can manage how any such issues will be conveyed to the government, which will be assessing your credibility throughout the process. We can’t help you manage what we don’t know about, and neither we nor the government wants to be surprised by something that we should have learned of earlier.