What is a Whistleblower? – The National Law Review

Wednesday, April 27, 2022

When hearing the term whistleblower, some of the names that may automatically come to mind include famous whistleblowers that have been covered in the news: Edward Snowden, the controversial whistleblower who leaked documents regarding National Security Agency surveillance programs; to Deep Throat of Watergate, the FBI whistleblower who would later be named as Mark Felt; and even Frances Haugen, the recent Facebook whistleblower.

These whistleblower cases may have been highly publicized across news stations, but they are some of the many whistleblowers across a number ofdifferent industrieswho help uncover fraud and corruption and in turn, help make America a more equitable place.

Awhistlebloweris a private individual who comes forward with evidence regarding fraud, corruption, waste, or abuse and reports it to law enforcement or the appropriate government agency. Whistleblowers help expose illegal or unethical behavior by providing inside information that otherwise would not have become known to the public.

Whistleblowers are also known as qui tam relators and are usually employees, former employees, contractors, freelancers, or other individuals with non-public information regarding crimes, unethical behavior, corruption, or fraud against the government. Common examples of whistleblowers include a healthcare worker that witnesses medical billing fraud or a defense contractor employee noticing inferior products being substituted and sold to the U.S. government.

Whistleblowers are incentivized to come forward with the potential of receiving a financial reward by various state and federal laws which also serve to provide whistleblowers with protection against retaliation.

Abraham Lincoln passed the False Claims Act (FCA) in 1863 as a way to encourage citizens to report the fraud and waste that was taking place during the Civil War. The FCA, also known as Lincolns Law, contains a qui tam provision that allows private citizens to bring forth lawsuits on behalf of the government against entities who have committed fraud and share in the financial recovery if the case is successful. According to theDepartment of Justice, the government recovered more than $70 billion in FCA lawsuits between 1986 and 2021.

Whistleblowers throughout history have helped to exposehealthcare fraud, environmental regulation violations, government contract fraud, violations of the Motor Vehicle Safety Act,tax fraud, and more. These types of illegal and unethical activities can harm taxpayers that fund government programs as well as the general public, and these crimes may otherwise go unknown without the bravery of whistleblowers.

Whistleblower lawsuits that are filed under the FCA usually involve healthcare fraud andgovernment contractor fraud. Other types of whistleblower lawsuits involvesecurities fraud,customs/tariffs fraud, tax fraud, and environmental crimes.

Some of the most common whistleblower claims include:

Submitting false claims and information to procure unwarranted government funds, grants, loans, and contracts

Violating the terms of a government contract by providing substandard goods or services

Gross waste of funds, including using grant money or PPP loans for personal gain

Healthcare billing fraud, including billing for services not provided, double billing, upcoding, and more

Offering bribes or providing kickbacks in exchange for government-funded business

Presenting a danger to public health or safety, including designing and/or failing to recall dangerous automobiles and parts

The majority of whistleblowers are not splashed across the news like Ed Snowden. In fact, most remain anonymous, which helps protect them from retaliation.

The U.S. has many laws on the federal and state levels that are meant to protect both private and public sector employees from employer retaliation for becoming a whistleblower. The FCA protects whistleblowers who report fraud against the government from retaliation, while federal employees who report corruption or misconduct are protected from retaliation by theWhistleblower Protection Act. Other whistleblower laws that afford protections include but are not limited to theSarbanes-Oxley Act, theOccupational Health and Safety Act, theClean Air Act, and theToxic Substances Control Act.

Types of employer retaliation prohibited by whistleblower protection laws include termination, suspension, demotion, threats, harassment, withholding pay or benefits, or any other discrimination directed at an employee or contractor for their actions as a whistleblower. Whistleblowers who are retaliated against have the right to bring a separate lawsuit against their employer for damages relating to the retaliation, including reinstatement, back pay, attorneys fees, and more.

While the whistleblower does not specifically have to witness the fraud or crime take place, it is vital in all qui tam lawsuits that the whistleblower has thorough and specific evidence that proves the fraudulent or illegal behavior took place. Ideally, the evidence the whistleblower gathers should answer the following questions:

Who is committing fraud or a crime, and who knows about it?

What fraud, crime, or violation took place?

When and where did the fraud or illegal behavior occur?

How was the crime or fraud committed, and is it ongoing?

How was the public affected by what took place?

Under the FCA as well as other whistleblower programs including the IRS, SEC, CFTC, and NHTSA, whistleblowers who provide information that leads to the government successfully settling the matter are rewarded between 15 and 30 percent of the recovery. In a multi-million dollar qui tam settlement, thewhistleblowers financial rewardcan be significant.

Link:
What is a Whistleblower? - The National Law Review