Construction Industry Whistleblowers: Protections for People Building the Future of American Infrastructure

By Tammy Marzigliano and David (Dave) Jochnowitz
Construction worker

Federal and state governments will spend tens of billions of dollars on major construction projects over the next decade, as part of a nationwide initiative to repair aging and ailing public infrastructure. Construction industry workers are on the front lines of these projects, and may have workplace safety concerns, or may have spotted instances of fraud, waste, or abuse. State and federal laws protect whistleblowers in the construction industry who raise these concerns, and some laws provide rewards for workers who report fraud on these major public projects.

Of course, as anyone in the industry knows, some projects have unsafe working conditions. And these unsafe conditions can be deadly. According to a recent New York State comptroller’s report, more than a quarter of all worker deaths in New York City were construction related, and between January 2018 and May 15, 2021, there were thousands of injuries at construction sites. Construction whistleblowers can help keep job sites safer by reporting the issues they see on (or under) the ground and above (or below) the streets.

Meanwhile, some experts say that at least five percent of the tens of billions in government money being poured into these projects will be lost to fraud. For major projects, that means big money being stolen from the government. For example, New York and New Jersey’s Gateway program is expected to cost more than $16 billion over the next decade—and potentially $800,000,000 of it could be syphoned away by bad actors. Similarly, California is set to receive billions in infrastructure spending, like the $400 million to retrofit the Golden Gate Bridge, or the $100 million to renovate airports. If the experts are right, tens of millions of this public money could be the target of fraud.

Construction whistleblowers, or anyone working on these projects, who speak up about workplace safety or fraud are protected against retaliation by several federal and state laws. For example:

  • Whistleblowers who file complaints about occupational hazards, or who participate in investigations regarding occupational hazards, are protected against retaliation under the Occupational Safety and Health Act (OSHA).
  • Whistleblowers working on state or federally funded projects who report fraud, or who try to stop the waste of government funds, may be protected against retaliation by State or Federal False Claims Acts. Whistleblowers under state and federal False Claims Acts may also be able to file a lawsuit to recover federal funds on behalf of the government and receive a reward of 15-30% of the recovered funds.
  • New York and California both have strong protections for whistleblower employees, including construction industry employees, who report suspected violations of law.

Other rules protect whistleblowers working on government projects who report contract violations, for example, when a contractor agrees to use high-quality products and replaces them with inferior goods, or when a construction company promises to use American-made material but uses cheaper foreign goods instead.

While various state and federal laws provide protections and incentives for construction industry whistleblowers, the law is complex. Determining whether an individual potentially qualifies for a reward or anti-retaliation protection requires careful analysis of each case’s unique facts and circumstances. Blowing the whistle is a major decision that can have ripple effects on someone’s life and career. If you are thinking about reporting fraud or blowing the whistle at your company, or if you’ve blown the whistle and been retaliated against, you can contact attorneys at Outten & Golden’s whistleblower and retaliation practice group.