Whistleblowing

What is whistleblowing?

Whistleblowing is the term used when a person passes on information concerning wrongdoing.The person is usually closely associated with the organisation, often an employee, but also sometimes a supplier or a customer. They become a whistleblower when they observe behaviour or actions that they believe to be misconduct, illegal and not in line with the company’s Code of Conduct, and report that suspicion as a whistleblowing matter.

Whistleblowing can take place either within an organization, or publicly.

Organizational whistleblowing:

is a preventive tool for organizations to reduce the risks of malpractice and irregularities. Empowering employees and other relevant stakeholders to blow the whistle increases the chances of managers obtaining information on irregularities that should be acted upon at an early stage. Organizations that take their Code of Conduct seriously will therefore put in place mechanisms to enable organizational whistleblowing, such as a secure corporate whistleblowing system or hotline and a whistleblowing policy or guidelines.

Public whistleblowing:

In organizations where trust is low, the above mechanisms are not in place, or there is no possibility to be an anonymous whistleblower, the person may be more inclined to blow the whistle publicly. This may include reporting to the police, media or through online social channels, which of course brings a greater risk of reputational damage for organizations. In some instances, though, there is a duty to blow the whistle to a professional body or regulator.

Whistleblower

Whistleblower, an individual who, without authorization, reveals private or classified information about an organization, usually related to wrongdoing or misconduct. Whistleblowers generally state that such actions are motivated by a commitment to the public interest. Although the term was first used to refer to public servants who made known governmental mismanagement, waste, or corruption, it now covers the activity of any employee or officer of a public or private organization who alerts a wider group to setbacks to their interests as a result of waste, corruption, fraud, or profit seeking.

Steps/procedure for a whistleblowing

It’s important that you take the right steps in filing a claim under any key whistleblower law, such as the False Claims Act or the Dodd-Frank Act. Here are the steps our whistleblower lawyers at Sanford Heisler Sharp, LLP tell clients who are ready to bring a qui tam matter to light.

Step 1 — Get Evidence

This is first and the most important step in your whistleblower claim. It’s crucial that you get documentary evidence of the fraud. Such evidence can include emails, internal studies, billing records, or test results. If you can witness the wrongdoing first hand that’s great, but not necessary. This evidence will help support your claim when you present it to the government. The more evidence you have, the better chances your case will be.

Remember to keep this information strictly confidential; the information should not come from public sources.

Step 2 — Presenting the Evidence

Under the False Claims Act, the whistleblower must file a complaint in court as well as submit it to the government, along with a Disclosure Statement that details the alleged misconduct. However, before filing the claim, we will set up a meeting with the appropriate government agency to discuss the claim. This is when you have to show the government that you have enough evidence of the fraud to support your claim.

Step 3 — Government Investigation

Now comes the longest part of the claims process — the government’s investigation. During this time, all aspects of the matter, including the whistleblower’s identity and the investigation itself, will remain confidential. Any formal complaints filed in court are kept under seal so even the defendants don’t know what’s going on. During this time, you may be interviewed by the government, along with any other witnesses involved or knows of the fraud.

The complaint will remain under seal for 60 days unless the government asks for an extension, which it usually does. If criminal violations are involved in the claim, the FBI may be involved in the case. The whistleblower must be accessible and cooperative to help the government with the case.

Step 4 — The Decision

If the government decides to bring a case, the whistleblower may be asked to testify at trial or a grand jury proceeding. It’s at this point your identity will be disclosed. Roughly 90 percent of False Claims Acts cases the government intervenes in tend to be successful. But if the government declines to intervene, these whistleblower cases are less than successful. Without the government’s support, the pursuit of the cases can be expensive and lengthy. Also, you may be prepared for retaliation from your employer. Although it is illegal for a company or organization to retaliate against a whistleblower, it still happens.