Whistleblowing & Whistleblower Retaliation

Whistleblowers play a critical role in a healthy democracy, protecting investors, taxpayers and the public at large. Our job? We protect the whistleblowers.

With roots dating back to the Revolutionary and Civil Wars, whistleblower law today encompasses a broad spectrum of programs that protect–and often incentivize–individuals who come forward to report misconduct. 

Recognizing the personal and professional risk that whistleblowers face, the government has developed reward programs that provide robust financial incentives to individuals who provide enforcement authorities with information on illegal conduct. By way of example, the SEC Whistleblower Program has paid out more than $2.2 billion to those who report violations of the federal securities laws–the lion’s share paid to employee whistleblowers. 

Many programs provide anonymity protection for individuals who work with a whistleblower attorney.

While whistleblower programs provide a framework for anyone to come forward, “insiders” are often in the best position to provide early and actionable intelligence on fraudulent schemes. To that end, whistleblower statutes have developed strong anti-retaliation protections for the employee whistleblower. These rules prohibit employers from punishing individuals who report illegal conduct, and often provide for reinstatement or front pay, back pay, along with attorneys’ fees and other costs. Some anti-retaliation provisions include special damages for emotional harm, and punitive damages for especially egregious retaliation.

Despite these protections, whistleblowers must take special care when deciding whether to report internally in the first instance. The regulations here are complex and the risk is real. Whistleblowers should consider talking to an attorney before reporting internally.

In recent years, companies have used various employment, separation and other agreements to silence whistleblowers. This is illegal. To deter this impermissible conduct, enforcement authorities have levied harsh penalties against entities that intervene with an individual’s right to report misconduct. Employees who are concerned that any employment document prohibits reporting to law enforcement should contact an attorney.

Financial Incentives for Whistleblowers 

Several government programs offer significant financial rewards to individuals who provide original information about fraud, corruption, or other illegal conduct by corporations or individuals. Examples include:

• SEC Whistleblower Program
• CFTC Whistleblower Program
• IRS Whistleblower Program
• DOJ Whistleblower Program
• The False Claims Act

In each of these programs, eligible whistleblowers receive a percentage of the recovery if the information results in a successful enforcement action. In some cases, these rewards can be up to 30% of the total monetary sanctions collected by the government. 

Eligibility criteria vary for each government program, and a whistleblower attorney is best positioned to guide individuals when, how, and to whom they should report wrongdoing. In general, tips must be original, timely, and not already known to the authorities. Other considerations include a whistleblower’s cooperation in the government’s investigation. 

For many whistleblower programs, timing is mission critical. Whistleblowers who report first are at a significant advantage. While some programs allow later-filed whistleblowers to share in a reward if they significantly contribute to an ongoing investigation, the bar is higher, and some programs don’t allow any recovery at all for late filers.

Each program has different rules, and an attorney can help identify the best program to meet individual protections and maximize available incentives. 

Why Outten & Golden? 

With three decades focused exclusively on the representation of employees, our whistleblower team leverages the strengths of Outten & Golden’s marketing-leading employment law practice. This strength is reflected in the practice leadership: Tammy Marzigliano is a nationally recognized employment lawyer whose work has put hundreds of millions of dollars in the hands of wronged individuals and led to historic SEC and IRS whistleblower awards. Dave Jochnowitz is a seasoned whistleblower attorney whose cases have returned hundreds of millions of dollars to taxpayers and investors. This formidable combination renders us unique in the field of whistleblower representation.