A whistleblower is someone who leaks information about a business or government agency that violated the law in some way. A whistleblower can be, but is not limited to:
- An employee of a federal or state agency
- An employee of a company
- Anyone who sees wrongdoing
Whistleblowers can report violations of company policy, specific lawbreakers, those who fail to follow state, local, or federal regulations, those who are a threat to national security, or those who engage in fraud or corruption.
Whistleblower Protection Laws
Whistleblowers are sometimes retaliated against, meaning that they are treated less favorably by the business or government agency they reported on or exposed. Whistleblower protection laws have been created to protect whistleblowers from retaliation by the companies or agencies involved.
- The original Whistleblower Protection Act (1986) and the more recent Whistleblower Protection Enhancement Act (2012) protect federal employees against retaliation by agencies they work for.
- The Occupational Health and Safety Administration (OSHA) is a one-stop-shop administrator for whistleblower laws for 20 federal agencies, including the OSHA law, the Affordable Care Act, the Clean Air Act, and the Safe Drinking Water Act.
- The Taxpayer First Act (effective July 1, 2019) includes several additional protections for tax whistleblowers.
State Whistleblower Protection Laws
All states have whistleblower protection laws, but they vary from state to state.
California, for instance, has strong laws to protect whistleblowers. One of these laws, SB 496, prohibits employers from making or adopting rules or policies to prevent an employee from disclosing information. This law also prohibits an employer from retaliating against an employee for disclosing or refusing to participate in an activity that would violate or not comply with a local rule or regulation.
Florida's state code prohibits independent contractors from taking retaliatory action against someone who discloses information alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty by an agency, public offer, or employee.
Why Whistleblower Protection Laws Are Needed
Employers have been known to retaliate against employees who blow the whistle on them. So, whistleblower protections have been built into many federal and state laws to protect employees. Employers may retaliate in a number of ways, including:
- Firing or laying off the whistleblower(s)
- Denying overtime or promotions
- Denying benefits
- Failing to hire or rehire
- Reassignments affecting promotions
- Reducing pay or hours
- Making threats
Complaints Against an Employer vs. Whistleblower Claims
|Complaints vs. Whistleblower Actions|
|Unsafe workplace practices||Illegal activities or violation of laws|
|Unfair treatment||Retaliation against complaints|
Filing a whistleblower complaint is not the same thing as filing a complaint against an employer for violations of the law. For example, let's take OSHA. If an employee feels that their company is engaging in unsafe work practices, they can anonymously file a safety and health complaint against OSHA.
Other common employee complaints against employers relate to pay, discrimination, and other workplace violations. These types of complaints should be filed with a state or local employment agency or the U.S. Department of Labor.
If the employee feels they have been retaliated against by the employer for their complaint, that’s when they can file a whistleblower protection claim.
Filing a Whistleblower Complaint
If you think you have been wrongfully retaliated against for filing a complaint against your employer, you can file an OSHA whistleblower complaint using the online complaint form, or by phone, fax, or mail. An OSHA violation complaint must include the name of the person making the complaint, and it must be filed within a specific number of days of the event (varying by agency and law).
A whistleblower complaint must allege four key elements:
- The employee engaged in activity protected by the whistleblower protection law(s).
- The employer knew about, or suspected, that the employee engaged in the protected activity.
- The employer took adverse action against the employee.
- The employee's protected activity motivated or contributed to the adverse action.
How the Whistleblower Process Works
The person making the claim is called the “Complainant” and the employer is the “Respondent.” In most cases administered by OSHA, the general investigation process is described below.
- OSHA receives the claim and interviews the Complainant to see which law has been violated and if the claim is clear enough to begin an investigation.
- An investigator is assigned and the Complainant, the Respondent, and the appropriate federal agencies are notified.
- The investigator will ask both parties to give each other a copy of everything they submit to OSHA about the complaint.
- OSHA will ask the Respondent to give a written defense (a position statement).
- Both parties should actively participate in the process, responding to OSHA’s requests and rebutting the other party’s position.
The parties may agree to settle the dispute using OSHA’s Alternative Dispute Resolution (ADR) program (similar to arbitration and mediation).
If the evidence supports the claim of the employee, OSHA will issue an order requiring the employer to take specific actions to provide relief to the employee—that is, to bring the employee back to their position before the retaliation. If the evidence doesn’t support the claim, OSHA will dismiss the claim.
After they receive the OSHA decision, the employer or employee can request a hearing before an administrative law judge of the Department of Labor. There is also an appeals process of the DOL judge’s decision.
Can I make a whistleblower complaint for Medicare fraud?
Anyone can file a "private party" whistleblower action if they have evidence of Medicare or Medicaid fraud. The claim can be filed on behalf of the government against anyone who causes fraud in these programs, including state health care programs. Most states allow whistleblowers to recover wrongfully billed money.
What if I file a whistleblower complaint and the claim turns out not to be true? Can I be punished for making the claim?
The federal False Claims Act protects people who submit claims to the government. To violate this Act, the person must have submitted the claim knowing it was false. A false claim is one in which the claimant must have had actual knowledge, deliberately ignored the truth or falsity of the information, or had a "reckless disregard" for the truth.
Why are whistleblower protection laws important?
It’s sometimes difficult to separate “normal” employer actions against employees from those actions which are the direct result of retaliation. That’s the reason the whistleblower protection laws have been created; To provide a way to investigate complaints and come to a resolution. These laws look at employer motivation for their actions, and the employer must show that the actions against the employee were part of their normal employment process.