What is a Whistleblower? – Whistleblower Definition
There is no uniform definition of a whistleblower. However, the definition commonly used includes the following:
A whistleblower (or whistle-blower) is someone:
- Whose loyalty is to the truth;
- Who becomes an informant to the government on corporate crimes;
- Who exposes violations of law, including violations of the Foreign Corrupt Practices Act, the Securities Exchange Act, the Commodity Exchange Act, money laundering, False Claims Act, fraud in government contracting or procurement, environmental laws, threats to the public safety, or tax fraud;
- Who discloses government misconduct;
- Who participates in official whistleblower reward programs, such as those under the Dodd-Frank Act, the Foreign Corrupt Practices Act, Commodity Exchange Act, qui tam, and IRS tax law.
Who qualifies as a whistleblower?
The United States has over 50 separate whistleblower laws, and they each define a protected whistleblower disclosure separately. See Rule 4 (“Find the Best Federal Law). Likewise, almost every state has enacted whistleblower protections, and a majority have a state version of the False Claims Act. See Rule 5 (“Don’t Forget State Laws”). It is vitally important that your disclosure falls within the definition of a protected whistleblower disclosure under these various laws.
In addition, to qualify for a whistleblower reward, your disclosures must meet the definition of “original information” as defined under each reward law. See Rules 6 (False Claims Act), Rule 7 (Tax Frauds and Money Laundering), Rule 8 (Securities and Commodities Frauds), Rule 9 (Foreign Corrupt Practices Act), Rule 10 (Auto Safety), Rule 11 (Ocean Pollution), Rule 12 (Wildlife Trafficking).
What is the difference between an “Analysist” and a “Whistleblower?”
Under the Dodd-Frank Act whistleblower reward program, the Securities and Exchange Commission (SEC) defines a “whistleblower” as “any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U.S.C. § 78u-6(a).
However, the Dodd-Frank Act was one of the first laws to explicitly define a “whistleblower” beyond the typical “insider.” The law covers traditional whistleblowers but also covers “analysts” who review publicly available materials and can analyze the materials in a manner that makes the government aware of frauds that otherwise would be undetected.
What is the history behind defining a “whistleblower” in the United States?
The United States has led the way in protecting whistleblowers, starting with the Continental Congress, which was America’s governing body during the Revolutionary War for Independence. The Continental Congress passed the first whistleblower law in 1778 in response to the prosecution of naval officers for reporting misconduct by their commanding officer. The first publication of the full history behind this original law was in The Whistleblower’s Handbook. See “The Final Rule,” starting on page 327 of The New Whistleblower’s Handbook.
After the enactment of the 1778 law, the next important whistleblower law enacted in the United States was the False Claims Act, signed into law by President Abraham Lincoln during the height of the U.S. Civil War in 1863.
The False Claims Act defines a “whistleblower” as a “relator,” and covers anyone who provides the government with information on frauds against the government by filing a Qui Tam lawsuit. Today the law covers numerous areas, including Medicare fraud, healthcare fraud, military procurement fraud, customs and lease violations, and all other federal government programs. The law is designed to incentivize “insiders” with information on frauds to come forward. These “insiders” are covered even if they participated in illegal conduct.
Other scandals, such as the Enron collapse in 2001, led to the passage of the Sarbanes Oxley Act, which protects corporate whistleblowers who report securities fraud from retaliation. The Dodd-Frank Act, enacted in response to the 2008 financial crisis, offers monetary awards for whistleblowers who report financial fraud and securities violations to the SEC and the Commodity Futures Trading Commission (CFTC). Each law contains its own definition of who qualifies as a whistleblower.
There are many other federal and state laws that offer whistleblower protection depending on the subject matter of the whistleblower disclosure and the status of the employee or person who is reporting misconduct.
What protection does a whistleblower have?
It is best to consult with an attorney to navigate the maze of whistleblower protection and whistleblower reward laws that are available. The law firm of Kohn, Kohn & Colapinto offers free consultations to help advise you on what laws might apply to a particular situation.