6 Mistakes Whistleblowers Should Avoid

Employees (both private sector and government employees) who report wrongdoing by their employers provide a valuable service to the public by helping to put a stop to fraud, waste, and abuse. Unfortunately, those employees — known as whistleblowers — often face consequences for their actions, including retaliation by their employers. While retaliation against whistleblowers is unlawful, many whistleblowers make mistakes that can compromise their ability to enforce their legal rights. If you’re considering blowing the whistle, you should strongly consider speaking to a Richmond employment lawyer to make sure you do it the right way.

Whistleblowing 101

A whistleblower is an employee who reports fraud, waste, abuse, corruption, or any other unlawful activity of which they are aware to the appropriate government body. Each whistleblower law encompasses a set of “protected activities” against which employees are protected from retaliation (e.g., termination). For example, protected activities under Virginia’s whistleblower protection law include:

Reporting violations of state or federal law (e.g., anti-discrimination law)
Participating in an investigation or hearing
Refusing to participate in criminal activity

If a whistleblower engages in a protected activity and then suffers an adverse employment action, they may be able to pursue a retaliation claim against their employer. Contact a Richmond employment lawyer for more details.

Mistakes to Avoid When Blowing the Whistle

Employees who are considering becoming whistleblowers should avoid the following mistakes:

1. Not Understanding the Law

There is no single whistleblower protection law at the federal level. Instead, there are dozens of individual laws, each of which focuses on a particular subject matter. And then there are state-level whistleblower laws, which vary from state to state. Some of the most common federal whistleblower laws (and the subject matter they cover) include:

The False Claims Act (presenting false bills to the federal government)
The Dodd-Frank Act (securities and commodities law violations)
The Sarbanes-Oxley Act (wire fraud, investment fraud, insider trading, and securities fraud)
The Whistleblower Protection Act (wrongdoing committed within federal agencies)
The Occupational Safety and Health Act (workplace safety violations)
The Internal Revenue Code (tax fraud and noncompliance)

If you’re considering blowing the whistle, make sure that the incident you’re reporting is unlawful under a specific statute and that that statute contains whistleblower protection provisions that cover the protected activity you plan to engage in.

2. Waiting Too Long to Report

The fresher your information, the more useful it will be to investigators. But you should act quickly not only to preserve the freshness of your evidence. For example, qui tam actions under the False Claims Act must be filed either within six years of the date of the commission of the fraud or within three years after the federal government learned of or reasonably could have learned of the fraud. Retaliation claims under the False Claims Act must be brought within three years of the date of the retaliatory action. Other whistleblower protection statutes have much shorter deadlines for retaliation claims, such as the OSH Act’s deadline of 30 days.

3. Not Keeping Records

Creating a paper trail is enormously important in whistleblower claims, not only because it can help to bolster your claims of misconduct but also because it can rebut potentially retaliatory allegations made against you. To create a useful paper trail:

Keep a record of relevant events, including names, dates, and times
Communicate through written formats rather than face-to-face or over the phone (if you must communicate verbally and choose to record your conversations, make sure you comply with your state’s recording consent laws)
Preserve all written communications, including emails, texts, instant messages, and handwritten notes

At the same time, do not indiscriminately hoover up any and all documents and information that you think might be relevant. Generally, stick to keeping documents that are reasonably related to the misconduct you are alleging and that you have access to within the scope of your job duties. A Richmond employment lawyer can advise you further on the proper scope of evidentiary records in whistleblower cases.

4. Participating in the Misconduct

Whistleblowers typically are motivated by a desire to expose and correct misconduct — so why would a whistleblower ever engage in the misconduct at issue? Well, it’s not always so simple. First off, the whistleblower may not have known that what they were doing was unlawful at the time they did it. And even though it sounds easy, refusing a direct order from a supervisor is often a difficult undertaking. While a whistleblower who participates in the misconduct at issue is not necessarily barred from protection, their participation can reduce the amount of the reward they receive (if applicable) and can provide an independent, non-retaliatory basis for adverse employment actions.

5. Talking Too Much

It’s not uncommon for whistleblowers, upon discovering compelling evidence of wrongdoing, to broadcast their findings in a public manner, whether by talking to the media or by posting on the internet. This often leads to the potential whistleblower suffering adverse employment actions before they file an official complaint, which, in turn, can create the appearance that the whistleblower’s retaliation suit is merely self-serving or vindictive. If you think you’ve uncovered evidence of wrongdoing and want to blow the whistle, speak to a Richmond employment lawyer before speaking to anyone else.

6. Using Work Devices for Whistleblowing Activity

Keep in mind that your work computer and phone are not private. Your employer will have access to most or all information on those devices (including evidence related to your whistleblowing activity) and may be able to revoke your access to it at any time. Accordingly, you should generally avoid using work devices for whistleblowing.

Talk Through Your Concerns With a Richmond Employment Lawyer

Blowing the whistle on your employer can be an intimidating prospect. The best way to ensure the safety of your career and reputation is to work with an attorney who has experience handling whistleblower claims. For more information, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.