The benefits of denouncing fraud can be great both emotionally and economically. Not only are you helping the US government and its taxpayers but you may also receive a reward at the end of the case. Still, the idea of a being whistleblower carries a lot of negative imagery, especially when you consider the consequences. After all, most whistleblowers are just normal people who have to continue on with their lives after the case is over. The thought of losing your job, or being discriminated against by a current or future employer, can be enough to persuade people against becoming a whistleblower. Although most whistleblower programs, including the False Claims Act, have anti-retaliation clauses meant to protect vulnerable employees, there have been cases where retaliation does happen.
Take, for example, the case of John Gravitt. Considered by most to be the first whistleblower of the modern era, he paved the way for future whistleblowers by denouncing a fraudulent scheme conducted by his employer GE Aircraft. The scheme consisted of GE falsifying the cost of B-1 Bomber jet engines in order to get more money on their federal contracts. After refusing to falsify the information, he wrote a letter to the vice president of GE to denounce the act but got fired the next day. GE defended the termination by saying Gravitt was let go due to downsizing but, after filing a lawsuit as a whistleblower using the False Claims Act, Gravitt was able to establish that he was retaliated against. In the end, he received a higher reward percentage from the settlement because he suffered from retaliation.
The SEC Whistleblower Program is also known for helping whistleblowers who have been retaliated against for exposing wrongdoings. In 2020, they announced that they awarded $5 million to a whistleblower and, in their decision, took into consideration the “unique hardship” that he suffered. The term “unique hardship” has been used by the SEC in similar cases and it could refer to the whistleblower being terminated or demoted, being given fewer privileges than before, or even being threatened. In one of those cases, threats were made to the whistleblower while the investigation was ongoing, which constituted witness intimidation.
Most of the time, retaliation happens when the whistleblower is fired, but there are other examples like having a promotion or a bonus be rejected, harassment in the workplace, unfair sanctions, being denied benefits, or being blacklisted. In most cases, retaliation occurs when the whistleblower warns their superior that they will expose an ongoing fraud and it is meant to discourage them from moving forward. The dangers of retaliation and how it might deter future whistleblowers from coming forward have led to the implementation of anti-retaliation clauses in most whistleblower programs. Many of them, like the Sarbanes-Oxley Act, aim to protect whistleblowers even if their actions don’t lead to a successful case.
It is important to point out that the anti-retaliation clauses in whistleblower programs do not shield employees that have been terminated for violating the law. If a whistleblower attempts to harass or blackmail their employers and is fired as a consequence, they are not eligible for protection against retaliation. Unprotected actions also include illegally taking information, like breaking and entering someone’s office or hacking into an email, even if it is for the purposes of building a better whistleblower case. However, breaking internal workplace rules like non-disclosure or confidentiality agreement violations does not constitute a violation of criminal laws and any adverse effect of breaking said rules may fall under the protection of an anti-retaliation clause (though, there still may be other civil legal consequences).
How do we fight back against retaliation? Anti-retaliation rules are meant to dissuade employers from going after their employees. This means that any resolution to a retaliation situation must come after the fact. Employees who seek justice from retaliation are encouraged to seek legal representation, as retaliation cases are separate from the whistleblower case that affected them in the first place. When a retaliation case is settled, the affected employee could be entitled to back pay (usually double, depending on the applicable anti-retaliation law), including lost wages and benefits, reinstatement, front pay equal to the wages that the whistleblower would’ve earned until they get another job, out-of-pocket expenses, attorney’s fees, and emotional damages.
If you have been retaliated against for reporting wrongdoing, please contact our firm, Piacentile, Stefanowski & Associates LLP, also known as Whistleblowers International. Our attorneys and investigators will evaluate your matter free of charge and may be able to assist you in an anti-retaliation claim.