Whistleblowers need to prepare when exposing employer wrongdoing

Do consult an attorney with experience in whistleblower claims

Navigating the complexities of the False Claims Act, the Dodd-Frank Act, and other statutes or potential claims is not something you should attempt alone. Even if you provide evidence of serious wrongdoing, there are potential pitfalls in the system that may prevent you from receiving any related compensation.

Further, there are many practical reasons for hiring a lawyer to assist you. This area of the law is specialized and requires a certain level of expertise. One of the main things that can help your claim succeed is inviting the Department of Justice or other prosecuting authority to join your case. An experienced attorney can help you present your case in a way that maximizes the chances that a government authority will get involved and pursue the case with you.

Most attorneys who represent whistleblowers do their work on a contingency basis, which means they only get paid if your claim is successful. If a whistleblower attorney asks you to pay in advance, you should look elsewhere.

Ask potential attorneys about their qui tam experience and success rate, and don’t be shy about asking for references.

Do understand possible repercussions

Filling a whistleblower lawsuit isn’t as simple as calling an attorney and alleging fraud. The legal process is complex and generally requires considerable time and effort on the part of the whistleblower. You may be asked to participate in a number of ways, including interviews, document reviews and testimony.

More importantly, whistleblowing involves professional and personal risks. Whistleblowers face significant psychological and financial strain that can take an emotional toll. Although employers aren’t allowed to fire you for whistleblowing, you may feel you are being relegated to a back office and forbidden to perform any real, fulfilling work, or experience other effects on the job for having voiced your concerns. You may also find yourself struggling with how to communicate your situation to future employers, including explaining why you blew the whistle at your prior job. Regardless of how your whistleblowing is handled by your employer, you need to mentally prepare yourself for a long road toward resolution of your claim.

Do document the fraud

If you’re considering filing a whistleblower claim, then keep detailed and chronological notes that include the who, what, when, and why of the fraud you believe is occurring. It will help your attorney evaluate and prove your case and attract the attention of the appropriate government authority. It may also help jog your memory or establish chronology when you’re called upon to testify in court. Also, copy and save all relevant files before you blow the whistle.

Do know your rights

By law, employers are prohibited from retaliating (firing, demoting or otherwise mistreating you) after you report fraudulent activity. If you feel your employer plans to (or already has) illegally retaliate against you, then let your attorney know right away so that he or she can advise you of your rights.

Some employers may claim they are being defamed based on a whistleblower’s allegations. However, you generally have a right to say negative things about the company in your claim so long as what you’re saying is true. If your employer sues you based on truthful statement, then your attorney will be able to come to your defense.

Do be honest with your attorney

Some employees assume that blowing the whistle exempts them from potential legal consequences that may be associated with their own role in the fraud. If you participated in the fraudulent behavior, reporting it as part of a qui tam lawsuit may mitigate – but not totally eliminate – criminal consequences. Even whistleblowers who receive million-dollar awards may spend time in prison. If you were part of the fraudulent activity, don’t try to hide it from your attorney. Talk with your lawyer before blowing the whistle in order to make sure your rights are protected. He or she may be able to negotiate immunity from prosecution in exchange for your cooperation.

Do not report your concerns to the wrong party

Consult with your lawyer before reporting any wrongdoing internally to your employer or to the government. It’s important to make sure you report your claims through proper channels and according to the required protocols. If you fail to do so, there may be serious repercussions for your claims, including having them dismissed in court.

After filing, many whistleblowers are required to keep their lawsuits confidential when their claims are filed under seal, meaning the case does not appear in public records until a judge decides to make it public. Whistleblowers are not permitted to disclose their allegations to anyone outside their legal team in this instance, particularly to the defendant or the media. If you do comment on your claims publicly, the government’s investigations can be disrupted and your claims could be thrown out of court.

Do not go public

Do not make your knowledge of the fraud public by discussing what you know with a newspaper or television reporter, on a social media website or blog, or on in other public forums. Public disclosure may disqualify you from being a whistleblower.

Do not wait too long to file

Relevant whistleblowing laws include statutes of limitations that vary depending on the law that applies. Generally, lawsuits must be filed within six years of the date of the fraud, though the time period that applies can be complicated. If you exceed this statute of limitations, you may not be able to file a qui tam claim, or your claim may get dismissed by the court, which means you are no longer entitled to compensation.

If you’ve already brought forth a whistleblower lawsuit and feel your employer retaliated against you, then you may have even less time to bring your claim. Though the statute of limitations varies from state to state, some states give plaintiffs only 30 days from the day the whistleblower learned about the retaliation (not the date of the retaliation itself) to allege wrongful termination or retaliation.

Do not assume whistleblower statutes cover all types of corporate wrongdoing

Mere bad behavior or just plain bad business does not necessarily rise to the level of fraudulent conduct that gives rise to a claim under the law. Most whistleblower statutes cover only specific types of fraud aimed at specific government agencies and/or with other specific requirements. This is why consulting an attorney is so important, particularly before you blow the whistle.

Do not give up hope

Though the process is protracted and often frustrating, don’t give up hope. Rely on your family and friends for support. If your lawsuit remains under seal, then consider contacting a professional bound by confidentiality, such as a psychologist, psychiatrist or religious leader. Let the knowledge that you are behaving ethically and acting in the public interest buoy your spirits, and remind yourself of the passion for doing the right thing that caused you to blow the whistle in the first place. Doing so will help carry you through the successful resolution of your claims.