07/13/2015 // KellerGroverWB // Jeffrey F. Keller // (press release)
When whistleblowers speak out about fraud, they do so to identify and help stop improper behavior. As many frauds have far-ranging impact — whether to taxpayers, a company’s shareholders, or society at large — the good that whistleblowers do can be immeasurable. But those committing the wrong – frequently the whistleblower’s employer – may be tempted to retaliate by firing, demoting, or transferring those who unveil it.
One of the most important things whistleblower statutes do, then, is to provide protections for insiders who speak out about improper behaviors. The idea is to encourage whistleblowers to come forward by assuring them that there are remedies for any retaliation they might experience.
Many of these protections are quite powerful. But navigating the process can be more complicated than one might expect. This makes it important for whistleblowers to understand what the laws provide, when those provisions apply, and any limitations that can impact them. It also means that having an experienced whistleblower [KS1] lawyer on their side from the outset may be more important than they imagine.
“Whistleblowers have been an extremely effective weapon in the war on fraud so it’s not surprising that there is a wide variety of whistleblower laws and programs,” says Jeffrey F. Keller, a partner with the whistleblower law firm Keller Grover. “Each of these will have its own perspective – and provisions – on protecting against and giving remedies for retaliatory conduct. For many whistleblowers, and potential whistleblowers, that might appear to confuse matters. But it doesn’t have to.”
For one thing, Keller says, many of the elements of a retaliation claim are similar no matter what law or rules apply. For instance, an employee who thinks he or she has been terminated, demoted, transferred, or otherwise punished for whistleblower activity can typically point to the timing of the action, previous performance reviews, the treatment of other employees in similar situations, and any threats or comments the defendant made as evidence of motive – that the action was taken in retaliation for speaking out.
Another basic element of a whistleblower retaliation claim is showing that the employer knew, or had knowledge, that the employee engaged in whistleblower activity. But here the laws can differ. What qualifies as protected whistleblower activity will vary from one statute to another. So, too, can statutes of limitation — the amount of time a whistleblower has — for filing a claim of retaliation.
“Generally the clock starts ticking when an employee learns that he or she will be retaliated against, which can come far sooner than the actual termination, demotion, or transfer,” says Keller, whose firm has offices in Los Angeles and the San Francisco Bay Area. “But here, too, the details will vary depending on which whistleblower law applies.”
Indeed, whistleblower statutes exist on both the federal and state levels. While many of them are based on the gold standard of whistleblower laws – the federal False Claims Act – the actual provisions and procedures can vary, sometimes greatly. Then there are programs on the agency level, such as the whistleblower initiatives created by the Internal Revenue Service and the Securities and Exchange Commission. For whistleblowers, it is paramount to understand which laws or programs apply to them, and what the relevant provisions, and requirements, are. For navigating these waters, working with an experienced whistleblower lawyer is extremely helpful.
Charting the right course is critical, not only because it helps whistleblowers recover what they wrongly lost, but because their success shows others that the law has their back – and they can blow the whistle on fraud with confidence.
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