Should I be an anonymous and confidential whistleblower?

Should I be an anonymous and confidential whistleblower?

The best way to prevent retaliation is for your company not to know who you are. If they do not know who the whistleblower is, it is hard to retaliate. The most effective strategy is to be an anonymous and confidential whistleblower.

See Rule 1: The Effectiveness of Whistleblowers.

Can whistleblowers remain anonymous?

The United States has strong legal protections for whistleblowers who want to shield their identity and become confidential informants. 

The best way to protect your confidentiality is to file a whistleblower claim under a law that provides for strict protection for confidentiality. 

The best laws are as follows:

Dodd-Frank Act, which includes securities fraud, commodity fraud, and bribery under the Foreign Corrupt Practices Act.  By law the SEC and Commodity Futures Trading Commission must maintain the confidentiality of whistleblowers who request such protection.  Also, these laws permit anonymous filings.

The IRS tax whistleblower law covers tax frauds, tax underpayments, most money laundering and other laws investigated by the IRS criminal division does not permit anonymous filings.  However, the IRS must protect the confidentiality of whistleblowers to the fullest extent permitted under law.  Thus, this program has developed an excellent reputation for protecting the confidentiality of whistleblowers.

The False Claims Act permits a whistleblower to file his or her original complaint without revealing his/her identity to an employer.  However, after the government concludes its investigation, in most cases, the complaint is made public.

Federal employees also can follow rules for confidentiality under the Inspector General Act and other laws.

Disclosing the identity of a whistleblower or confidential informant could constitute an obstruction of justice, see 18 U.S.C. § 1513(e).

Disclosures under the Whistleblower Protection Act to the Office of Special Counsel pursuant to 5 U.S.C § 1213(h).

Courts have found that breaching an employee’s right to confidentiality can constitute an adverse action

The U.S. Court of Appeals for the Fifth Circuit held that revealing the identity of a confidential whistleblower would constitute an adverse personnel action, giving rise to damages.  The Court reasoned as follows:  “it is inevitable that such a disclosure [of the whistleblower’s identity] would result in ostracism, and, unsurprisingly, that is exactly what happened to [the whistleblower] following the disclosure.” The Court went on to explain:  “no one volunteers for the role of social pariah.” See, Halliburton v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014)(emphasis added).

The SEC has issued sanctions against companies for taking steps to identify a confidential whistleblower. 

A large number of federal courts have issued decisions recognizing the right to anonymity.  

Whistleblowers should seek and obtain confidential informant status whenever that is available.

What can place my identity at risk of exposure?

To protect your identity and confidentiality, do not use any devices owned by the company or the government to blow the whistle. For example, do not use a company or government-issued technology, including phones, computers, or wireless networks. The U.S. Supreme Court permits highly intrusive surveillance through corporate-owned property regardless if that property is given an employee to use in a personal capacity. 

The best way to protect your confidentiality is to work with a whistleblower attorney. The attorney-client privilege protects the conversations you have with your attorney.

Can I remain a confidential whistleblower if I go to the news media?

The short answer is no. Neither journalists nor confidential informants have a recognized privilege to remain confidential. However, the First Amendment of the U.S. Constitution can provide some protection from government intrusion for the information you communicated to a journalist, but these protections are not absolute. In the private sector, if a case proceeds to court, corporations routinely ask for any communications you have had with the press and any documents that you have given to the media. 

Should I disclose my concerns internally to a compliance program?

You should not make any disclosures to your supervisor or company compliance office until after you consult a whistleblower attorney. There is a well-established history of employees suffering retaliation after disclosing internally.

Do companies protect whistleblowers when using internal reporting procedures?

The earliest whistleblower cases document corporations explicitly retaliating against employees who file their concerns internally. Furthermore, in these cases, the corporations argued in court that they could fire at-will employees who report concerns internally. Corporations have won and prevailed in many of these cases.

Most recently, the U.S. Supreme Court backed the Chamber of Commerce and held that employees who report internally lack any protection from retaliation under the Dodd-Frank Act. In response to the assault of corporations against whistleblowers who report internally, Congress amended and enacted laws to protect employees who report internally.

Given the long history of retaliation against internal whistleblowers, and the opportunity to obtain a reward if you contact the appropriate government agency, no employee should ever report an allegation of fraud or corruption internally until he or she has contacted an attorney and obtained advice. Furthermore, if an internal compliance program is managed by company attorneys, that program should be avoided.

If I report internally, can companies use the information I provide as a justification for firing me?

Yes. The U.S. Supreme Court and all of the lower courts permit corporations to use information collected by the company as grounds for discipline and to fire employees. Furthermore, some company compliance programs are managed by attorneys (usually the Office of General Counsel). It is strongly recommended not to have any contact with these programs. Professionals within the compliance communities themselves overwhelmingly condemn lawyer managed programs because the attorney for the company must act in the best interest of the company, which often means attacking the whistleblower. Attorney managed compliance programs often shield their information and investigatory files from civil discovery and even from the government. See Rule 17: Beware of “Hotlines” and Rule 18: Don’t Talk to the Company’s Lawyers.

The goal of the attorney managed compliance programs is to protect the company and prevent liability, usually making the whistleblower the target of their wrath.

 Can I be confidential if I report internally? 

By definition, if you disclose whistleblower concerns to a company, the company knows who you are, and this renders future attempts to be an anonymous whistleblower extremely difficult. Some laws require companies to keep whistleblower’s identity confidential if they report internally, but in practice, those do not work.  

David Colapinto, whistleblower attorney at Kohn, Kohn & Colapinto, testified in front of the House Subcommittee about the importance of protecting federal whistleblowers. Read his testimony: “Hearing on the Importance of Federal Whistleblowers” 

FAQ DISCLAIMER

What are the limits of this FAQ?  Is there a disclaimer concerning the information presented here?

Whistleblower laws are complex.  There are several qui tam or reward laws that can result in a whistleblower obtaining a multi-million-dollar judgment.  Each of these laws has specific filing requirements.  Additionally, there are over 50 different federal anti-retaliation laws designed to protect whistleblowers from discrimination.  Again, each of these laws has various lengths of statutes of limitation, filing procedures, and definition of a protected disclosure.

These FAQs give whistleblowers an overview of significant whistleblower qui tam, reward, or anti-retaliation laws.  They are not comprehensive.  If you believe you may have a whistleblower case, you should contact an attorney and obtain specific advice based on the facts of your case.  You cannot rely only on the information in this FAQ to determine whether or not you have a valid claim.

A critical resource for those thinking of blowing the whistle is The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press 2017).  The Handbook contains a detailed discussion on all major whistleblower laws and has extensive citations to legal cases and statutes the protect whistleblowers.  It is an invaluable resource.

Because of the complexity of the whistleblower laws, we disclaim all liability in respect to actions taken or not taken based on the contents of this FAQ.  The FAQ is a summary guide to understanding your rights. You should contact an attorney with expertise in whistleblowing before you make a disclosure. You must know your rights before you “blow the whistle,” so you can ensure that your conduct will be protected.

Can the whistleblower attorneys working at Kohn, Kohn and Colapinto help me?

The whistleblower law firm of Kohn, Kohn and Colapinto has a straightforward intake process.  It is available here.  Every intake is confidential, and the information provided protected under the attorney-client privilege. A senior partner at Kohn, Kohn and Colapinto reads each intake submission.

The intake process is free of charge.

Unfortunately, KKC receives many more requests for assistance then it can handle and must turn away many qualified whistleblowers.  If KKC cannot represent you, you still may have a solid case.

If KKC believes you may have a case with which it can help you, you will receive a follow-up call or email to obtain more information and determine whether or not our firm can represent you.  Until you have a signed written agreement with the firm, we are not your attorneys (although all of the information you provide to us is privileged and confidential).  Almost all of our cases are on a contingency fee basis.

Whistleblower Attorneys

Stephen M. Kohn – Founding Partner

Michael D. Kohn – Founding Partner

David K. Colapinto – Founding Partner

Mary Jane Wilmoth – Managing Partner

Todd Yoder – Associate Attorney

Kelsey Condon – Associate Attorney

Maraya Best – Associate Attorney

Siri Nelson – Legal Fellow

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