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Whistleblowers want to avoid these six common mistakes

| Mar 19, 2021 | Whistleblowing |

Most would-be whistleblowers do not act lightly. They weigh the potential benefits against the risks and decide they need to do the right thing. They know that blowing the whistle can lead to ostracization and retaliation, but they also know most whistleblowers enjoy legal protections against those behaviors.

Sadly, whistleblowers do not always understand that their protections are not absolute. Some may sacrifice their protections by failing to take the appropriate steps. Others may assume they have protections they do not actually have. Poor planning may undermine the reports they sacrifice so much to deliver. Whistleblowers have long played a great and important role in safeguarding the public’s interest, but they want to avoid making these six common mistakes.

Failing to understand the law

The United States does not have a single, umbrella law that stands over all whistleblower cases. Instead, there are multiple laws at the federal level, including the:

  • False Claims Act of 1863
  • Whistleblower Protection Act of 1989
  • Whistleblower Protection Enhancement Act of 2012

Additionally, all the states have their own whistleblower laws. These laws offer different protections and introduce different whistleblower responsibilities. People sometimes assume they have protections under one of these laws when they do not. Before you report any wrongful actions, you want to understand which law or laws apply to you and what they say.

Failing to follow the correct procedures

Several years back, a detailed survey of whistleblower cases found, unsurprisingly, that many whistleblowers suffered retaliation. In fact, it found that after the whistleblowers filed their reports:

  • 74% were terminated
  • 6% were suspended
  • 5% were involuntarily transferred

That means these people needed the protections they believed the laws provided them. However, the same survey found that of the lawsuits filed to correct retaliatory actions 55% failed. Many of these whistleblowers failed to prove the causal link between their whistleblowing and their dismissal, but that was not the only reason they failed.

Just over one-fifth of these whistleblowers lost their suits because they had failed to follow the correct procedures. Some laws demand that employees try internal means to correct problems before they blow the whistle. Some set forth strict time limits. Others require whistleblowers to identify which laws had been broken. Whistleblowers want to know and follow all these steps.

Failing to understand the public trust issues at stake

Most whistleblower laws exist to protect the public interest. Accordingly, whistleblower retaliation cases tend to succeed or fail largely due to their concern for public interest.

The survey in Fraud Magazine found that whistleblower cases filed under labor or employment laws failed more often than those whose claims more fully reflected the public interest.

Failing to keep a paper trail

If whistleblowers can reasonably expect to face retaliation, they want to be sure to keep paper trails that can undercut the false narratives their employers might offer. This means preserving key documents, but it can also mean more. It can mean:

  • Working through written communication as much as possible, rather than face-to-face
  • Keeping a record of events that includes names, dates and times
  • Thinking in advance about the information you will need to prove your case

Without the proper documentation, it can be extremely difficult for whistleblowers to contest their employers’ stories in court. Evidence is crucial, and if you do not start collecting information well in advance of the retaliation, you likely will not have the evidence you need.

Failing to keep your hands clean

Whistleblowers may not receive protection if they also participate in the illegal actions they report. They may also receive less in the way of compensation, and their actions may slow or sabotage any investigation that results from their reports.

Failing to work with an attorney

The decision to report wrongdoing is rarely easy, but whistleblowers play a key role in fighting corruption and abuses of power. Still, one of the final mistakes many whistleblowers make is in feeling that they need to go through the process on their own.

Whistleblowers who meet with an attorney early in the process will:

  • Better understand if they have a case
  • Learn which laws apply
  • Learn the steps they need to take
  • Receive guidance about the documentation they should keep
  • Get a better picture of the whole process, along with proper support
  • Improve the chances that their reports will lead to real change

It is generally advisable that anyone thinking about blowing the whistle meets with an attorney as early in the process as possible.