Whistleblower Protection: An Overview of Federal and State Law

December 31, 2015

What is Whistleblowing and Why is It Necessary?

Whistleblowing occurs when an employee reports or objects to an employer’s illegal behavior to a supervisor or an external law enforcement agency. Whistleblower protection in the workplace often falls under federal and state laws enacted to encourage employees to speak up when they witness illegal activities by their employers.

Whistleblowers have exposed such abuses as: employers who grossly mismanaged funds, violated workplace safety laws, violated public health laws placing the others at risk, abused authority, shareholder fraud, and filed false documents with governmental agencies, such as, tax returns. If an employee reports their employer for illegal activity (or activity that she reasonably believed was a violation of the law) and is then terminated, the termination may be deemed retaliatory and unlawful and the employee may be able to file a lawsuit against her former employer. However, a whistleblowing employee may still be terminated for legitimate reasons as long as they are unrelated to the employee’s whistleblowing.

Federal Protection Laws

Here is a brief overview of some Federal laws enacted to protect whistleblowers from workplace retaliation for their whistleblowing activities:

• Notification and Federal Employee and Anti-Discrimination and Retaliation act of 2002 (the “No-FEAR” Act): This applies only to employees of federal agencies. It requires federal agencies to notify all employees of their rights under whistleblower laws. It provides procedures for processing and investigating complaints regarding equal employment opportunity violations.
• Whistleblower Protection Act: This protects whistleblowers who work for the federal government. This Act created the Office of Special Counsel (OSC) which investigates complaints from federal employees.
• Military Whistleblower Protection Act: This permits members of the armed forces to make a direct complaint to a member of Congress.
• False Claims Act: This permits a private citizen to file a claim of fraud against the Federal government or its agencies. It allows the citizen who files the claim to collect a portion of the awards from the proceedings (typically around15-25%). It protects whistleblowers who report employers from being retaliated against by the employer. Several states, including Georgia have their own versions of the False Claims Act. If an employee decides to sue an employer for retaliatory termination they must show that: 1. They engaged in activity protected by the False Claims Act, 2. The employer had knowledge that the employee was acting helping the government in an investigation or lawsuit against the company and 3. The employee’s termination was in retaliation for protected activities and not based on some other legitimate, non-discriminatory reason.

Corporate Whistleblower Protection Law

• Sarbanes-Oxley Act (SOX): This protects whistleblowers in a publicly-traded reporting corporation. It requires that corporate employers institute anonymous complaint procedures for employees. It also requires that any investigation of a complaint be free from any threats of discharge, demotion, suspension or harassment against the employee reporting evidence of company fraud. It criminalizes retaliation against whistleblowers, which is punishable by fines or up to 10 years imprisonment.

Georgia Whistleblower Protection Laws

• Georgia Whistleblower Act
• Georgia Taxpayer Protection False Claims Act
• State False Medicaid Claim Act

Whistleblower claims under either act will be reported to the State Attorney General’s office, which will investigate the situation and can either file the lawsuit against the State through its own office, or give permission to the employee to file the lawsuit with a private lawyer.

When an employee in Georgia acts as a whistleblower and reveals fraud associated with Medicaid claims or other government programs, the employee is entitled to a portion of the amounts recovered (usually around 15-30% percent). This acts as an incentive for employees to speak out when they see a company or person defrauding the government. Retaliation by the employer against the whistleblower is prohibited.

The Georgia Whistleblower Act protects public employees from wrongful termination or retaliation when the employee exposes fraud, waste or abuse of a federal, state or local program.