Components of Whistleblower Protection Claims

Experienced New York City Attorneys Protecting Your Workplace Rights

Whistleblowers are employees who publicly disclose their employer's misconduct or criminal actions without employer consent. If you are contemplating blowing the whistle on your employer, you may rightly be concerned about the risk to your employment. However, in many cases, there are measures under the law to protect you against retaliation due to whistleblower activity. The protection available varies depending on the employer, where you live, and which type of activity you disclosed. If you want to know more about the components of whistleblower protection claims, you should consult the experienced New York City whistleblower lawyers at Phillips & Associates.

Components of Whistleblower Protection Claims

There is no general list of whistleblower activities that are protected under the law. Instead, there are several federal statutes that provide protection to whistleblowers, including the Sarbanes-Oxley Act, the Dodd-Frank Act, the False Claims Act, and the Whistleblower Protection Act of 1989. These statutes have different statutes of limitations, or periods of time within which to file a claim. Several federal whistleblower statutes limit the statute of limitations to 30 days.

Whistleblower claims hinge on an employee's proof that misconduct or fraud has caused financial loss to the government, a securities or commodities law violation has occurred, or there has been harm to the general public or employees. Generally, the False Claims Act covers financial loss to the government. Dodd-Frank covers violations of securities laws. Specific whistleblower laws also deal with consumer welfare, public health and safety, and the environment.

Fraud and misconduct that may form the basis for whistleblowing include trading manipulation in commodities or securities, failing to report a government overpayment, marketing drugs outside their FDA-approved uses, billing the government for services or products that were not provided or that are different from the services or products for which the government contracted, getting government funds with false compliance certificates or through legal violations, misconduct in the sale of securities, or market manipulation.

Another primary component of a whistleblower protection claim is proof that the employee was subjected to retaliation because of whistleblower activity. Without retaliation, there is no claim. Whether your employer's actions constituted retaliation may depend on the federal statute that applies because these statutes protect different sorts of activities, but generally retaliation happens when an employer takes a negative step against you because you reported the employer's criminal activity or failure to abide by regulations.

Under section 806 of the Sarbanes-Oxley Act, which gives whistleblower protection to employees of publicly traded companies, your attorney would need to prove a retaliation claim by showing that it was more likely than not that: (1) you engaged in a protected activity; (2) your employer knew about your engagement in the protected activity; (3) you experienced an adverse personnel action; and (4) the protected activity contributed to the adverse personnel action.

To state a retaliation claim under the False Claims Act, a plaintiff needs to allege that: (1) they took action in furtherance of a False Claims Act enforcement action, (2) the employer knew of this protected conduct, and (3) their termination was motivated by their engagement in protected conduct.

It may be challenging to prove a retaliatory motive. Facts and circumstances that may show a retaliatory motive include the employer's hostile attitude toward whatever was the basis of the employee's protected activity, the nature of the protected activity, the employer's knowledge that the employee engaged in the protected activity, being treated differently or getting more favorable performance reviews before engaging in the protected activity, the procedure for termination, threats or retaliation against other employees for the same type of conduct, and the timing of the discipline.