Top Ten Things to Know Before Becoming a Whistleblower

by Tammy Marzigliano & David M. Jochnowitz
July 20, 2023

If you’re contemplating becoming a whistleblower, you must be prepared to navigate a maze of legal protections and government incentives, and a highly complex whistleblower reward process. Every situation is unique, but there are several questions that all potential whistleblowers should consider before beginning their journey.

1. What is a whistleblower?

Although people sometimes use the word “whistleblower” to describe anyone who speaks up about misconduct, in the legal world, a whistleblower is a person who engages in “protected conduct,” meaning a person who speaks up about certain types of wrongdoing protected by law.

2. What is considered protected conduct, and what is not?

Engaging in protected conduct means raising concerns about certain types of misconduct. Protected conduct can mean speaking up about fraud against the government or shareholders, threats to public health and safety, securities law violations, patient harm, and other illegal activity.

Not all speaking up is protected conduct, and not all types of misconduct are covered. For example, complaining that your boss is a bad manager – even if the boss is costing the company a lot of money through their bad management – isn’t necessarily protected conduct. But raising concerns that your boss is defrauding investors by stealing from the company may be protected conduct. Knowing and understanding the difference is critical, and something a lawyer can assist you with.

3. What actions are considered retaliation?

Illegal retaliation occurs in response to whistleblowing about protected conduct. The most obvious form of retaliation is terminating someone’s employment, but retaliation can also include refusing to promote an otherwise qualified candidate, negatively changing the terms and conditions of employment, demoting someone, harassment, and more. For the retaliation to be illegal, it must be connected to the whistleblowing.

Not all forms of retaliation are obvious. For example, sometimes outing a person as a whistleblower to their peers can be considered retaliation. And not all retaliation occurs during employment. Blacklisting a former employee or giving former employees bad references can also be considered post-employment retaliation.

4. Are there laws to protect me if I blow the whistle?

There are many laws that protect whistleblowers. Some states, like New York, California, and Virginia, have broad anti-retaliation laws that protect whistleblowers who engage in protected conduct. And there are many federal laws that protect whistleblowers in certain industries, like whistleblowers who work at public companies, ones who work in the securities or commodities industry, or those who report fraud against the government.

Knowing whether your state has anti-retaliation protections that apply to you, or whether you’re in an industry protected by federal law, or whether the specific misconduct you’re reporting is protected is sometimes a nuanced and complicated question that a lawyer can assist with.

5. Do you need to be employed to be a whistleblower?

While most whistleblowers are employees, former employees can also blow the whistle after their employment has been terminated. And outsiders – people who were never employed by a company – can also be whistleblowers.

6. What rewards are available for blowing the whistle to the government?

There are several laws that reward whistleblowers who report illegal activity to the government. For example, the False Claims Act allows for reporting of fraud against the government; and the Dodd-Frank Act has several whistleblower programs for securities and commodities violations. In addition, there are whistleblower programs concerning anti-money laundering laws, federal tax laws, and more.

The amount of money a whistleblower can be awarded varies in each situation. For instance, the IRS’ whistleblower program awards between 15 and 30 percent of what it collects based on the whistleblower’s information, while the SEC’s program awards between 10 and 30 percent of any monetary sanction over $1 million. While these awards vary, the largest such award was in May 2023, when an SEC whistleblower earned nearly $279 million for a tip that uncovered bribery at the telecommunications giant Ericsson.

7. How do I make a whistleblower report to the government?

Different reward programs require whistleblowers to report in different ways. For example, under the False Claims Act, a whistleblower must be represented by an attorney, who files a lawsuit under seal (not publicly) in court on behalf of the government. Other whistleblower programs, like the SEC, CFTC, IRS, and Anti-Money Laundering programs, allow whistleblowers to submit tips directly to a government agency, but there are advantages to submitting through an attorney.

8. Is my whistleblowing confidential?

Some whistleblower programs, like the SEC, CFTC, IRS, and Anti-Money Laundering programs, all provide robust confidentiality protections for whistleblowers. The SEC, CFTC, and Anti-Money Laundering programs also allow for a whistleblower to file their tips anonymously, as long as they do so through an attorney.

9. How do I blow the whistle while protecting myself?

If you’re an employee of the company and are thinking about speaking up to your bosses or supervisors, you should be strategic in how you raise your concerns. What you say, how you say it, and to whom all matters in determining whether you engaged in “protected conduct.” While speaking up and doing the right thing is important, it is also important to make sure you’re doing so in a way that keeps you protected against retaliation.

If you’re not employed by the company you’re blowing the whistle on, or if you would rather report straight to the government rather than internally, you need to think about how best to present your case to get the attention of enforcement authorities. Every year there are hundreds of False Claims Act cases, over 12,000 SEC whistleblower tips, and hundreds or thousands of tips under the CFTC, IRS, and AML whistleblower programs. Getting your tip to stand out requires careful consideration of how you present your concerns.

10. How can a whistleblower attorney help me?

Whistleblower attorneys can look at the particular facts of your case and evaluate whether the concerns you want to raise or have raised qualify as protected conduct. They can also counsel you on how to effectively raise your concerns, help determine whether you’re protected against retaliation, and guide you through the complicated process of submitting your tip and claiming a whistleblower reward.

If you are thinking about becoming a whistleblower, contact the attorneys in Outten & Golden’s Whistleblower and Retaliation practice. We have attorneys in New York, California, and Washington, D.C., and handle employment matters nationwide.