Law Office of Alan Kansas, LLC

What Should Someone Do If They Suspect Their Employer Is Breaking The Law?

The most important thing someone can do is to keep their suspicions completely hidden until they know how to stay protected. That means answering two key questions: Is there a law that protects whistleblowers who report this type of legal violation? And, if there is, what whistle blowing actions are legally protected under the statute? If an employee starts blowing the whistle before they answer those questions, then there is a good chance the employee will have no legal protection from retaliation. Also, some employers will try to beat a suspected potential whistleblower to the punch by terminating employment before the employee blows the whistle. So, potential whistleblowers would be wise to keep their suspicions and concerns private until they have answered these two questions and made plan to take effective action while maintaining legal protection.

Most of the time, answering these questions starts with research into the law or regulation that the company is suspected of violating. Most people working in an industry don’t spend much time reading the actual laws or regulations and digging into the details of how they apply to any particular company practice. They may be informed by supervisors or co-workers who are passing down second or third hand interpretations of the law which can be misleading or plain wrong. Sometimes people think that a company rule or informal practice is in place to comply with a statute or regulation, but a violation of the company’s rule or practice does not necessarily mean the law was broken. The best thing a potential whistleblower can do is to quietly gather the information and legal knowledge needed to determine if the activity is illegal and why.

Once a person knows if the activity is illegal and has pinpointed the law or regulation that says so, they need to find a whistleblower statute that can protect them from retaliation. This means finding the whistleblower protection statute that applies to the underlying illegal activity and determining what type of whistleblowing activities are protected under the statute. (Again, some laws protect employees who raise concerns within the company and others only protect employees who bring their complaints to law enforcement.) At that point, a potential whistleblower can make a plan to do the right thing the right way — exposing the illegal activity while maximizing protection from illegal retaliation. There are several details to consider: What evidence should be gathered and provide to authorities or the employer? Should the complaint be made anonymously (usually not)? What should the employee do if the employer expects them to participate in the illegal conduct? All of these questions are best answered with the assistance of an experienced employment attorney.

What Should An Employer Do If They Suspect That One Of Their Employees Is A Whistle Blower?

I am going to assume that the employer we are talking about is not trying to break any laws. (If they are, I really can’t help them.) For the employer, the focus ought to be on investigating the alleged underlying illegal action and making sure the employee does not suffer retaliation. People make mistakes, employees who feel pressure to produce results sometimes resort to cutting corners, and bad things happen. A whistleblower employee’s tip can help save a company from serious legal problems. Thus, an employee bringing a potential violation to the company’s attention is presumably doing the right thing and should not be retaliated against. It is important that the company take all complaints of illegal activity seriously by investigating and taking the necessary legal actions to make things right. Ignoring a whistleblower’s complaint – even if it turns out to be mistaken — always looks bad.

At the same time, the employer needs to make sure that the employee does not suffer retaliation. I have seen cases where an employee turned in first or second level managers for doing something wrong, and before the company’s upper management had done an investigation and recognized the problem, the lower level managers had already taken retaliatory action against the employee. In these situations, the company had to deal with the problems caused by the illegal action and make things right with the whistleblower.

In many cases, the company will disagree with the employee and correctly conclude that the complained of actions are not illegal. That does not mean it is okay to retaliate against the whistleblower. In every case, the employer should make sure the employee’s supervisors understand that even if the company disagrees with the employee’s claim, it respects the employee’s actions in bringing forward the concern and will not retaliate. Sometimes, it is a good idea to reassign either the whistleblower or a supervisor so that they do not have to work with each other. However, this is a last resort type of option and should be done carefully. A change in job duties or schedule that harms the whistleblower can be perceived as retaliation.

Sometimes an employer suspects that an employee is just going through the motions to set up a retaliation claim. That does not mean that whistleblower retaliation laws will not apply. Employers should not fall into the trap set by a manipulative employee by thinking they can do whatever they want to an employee who exhibits less than pure good faith in raising legal concerns. In those cases, employers should go through the same steps outlined above – illegal conduct within the organization is still illegal even if it is brought to light by someone who just wants to set up a retaliation case. In some cases, the employer will conclude that the employee’s actions were not legally protected.

What Should I Do If I Suspect That My Employer Or Someone Else Is Ripping Off The U.S. Government?

Fraud against the U.S. Government is a special type of whistleblower situation. The False Claims Act is a Federal law with a special procedure that allows whistleblowers to file claims on behalf of the U.S. government against government contractors and subcontractors who knowingly submit false claims for payment – aka fraud – to the U.S. Government. Often, the government will take over prosecution of the case and the filer, known as the Relator, will provide the key information and testimony necessary for the case. The Relator can receive a share – usually 15 or 16% — of the money recovered from the contractor. These awards can add up to tens or even hundreds of millions of dollars. The False Claims Act also includes very strong whistleblower protections for employees and independent contractors who blow the whistle on government fraud. But the important thing to know about the False Claims Act is that to collect a share of the government’s recovery as Relator a person has to be the original source of the information. So again, it pays to gather information quietly and check with an experienced attorney before you share anything. This way, you can do the right thing while making sure to protect your right to recovery as the Relator.

Whistleblowing is an important civic responsibility. But like most things, there is a right and a wrong way to do it. Whistleblowers should seek legal advice early in the process to make sure they maintain maximum legal protection.

For more information on what to do When Employers Break The Law, get the information and legal answers you are seeking by calling (504) 300-0071 today

Alan Kansas, Esq.

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