RSS Feed“Whistleblower”: Definition, Distinctions, and Protections
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Whistleblower is a general term used to refer to anyone who calls attention to violations of any law by his or her employer. Because the government wants to encourage employees to come forward with this information, it has created protections for whistleblowers that are designed to prevent retaliation against them by their employers.
Types of Whistleblowers
There are two major categories of whistleblowers, distinguished by the type of complaint they bring against their employer. One type of whistleblower case, known as a qui tam case, is reported under the Federal False Claims Act (FFCA), while the other is filed under a number of different laws, all of which are administered and protected by the Occupational Safety and Health Administration (OSHA)’s Office of the Whistleblower Protection Program (OWPP).
Qui Tam
Qui tam cases are filed when an employee reports that an employer is defrauding the government. Estimates have concluded that fraud against the government comprises as much as 5 percent of the yearly federal budget, or about $150 billion for fiscal year 2008.To counteract this fraud, the government is encouraging employees to come forward with reports of fraudulent employer practices including, but not limited to:
• Work not completed
• More hours of labor than utilized
• Material not used
• Goods not delivered
• Securities fraud
• Fraudulent billing of Medicare or the military
To encourage employees to come forward with information of this type, the FFCA allows for whistleblowers to receive a portion (as much as 30%) of the recovered money, in addition to protections similar to those offered to other whistleblowers
OSHA-Administered Whistleblower Claims
OSHA administers whistleblower claims against employers and the corresponding protections afforded under 16 federal statutes. These claims in general are aimed not at fraudulent actions as are the qui tam-type claims, but are aimed at unsafe practices that can put employees at risk for industrial accidents or construction accidents or can endanger the public, with the qualification that aid rendered under the Sarbanes-Oxley Act of 2002, the Corporate and Criminal Fraud Accountability Act, is protected because the financial practices of investigated companies endanger the financial well-being of large sectors of the population, such as those affected by the Enron collapse. OSHA inherited this responsibility because the Occupational Safety and Health Act of 1970, which created OSHA, both preceded and provided the model for many of the other acts. In particular, section 11 of the Occupational Safety and Health Act guarantees employees the right to
• File a complaint with OSHA
• Seek an OSHA inspection
• Participate in an OSHA inspection
• Testify in any proceeding related to an OSHA protection
Even if a complaint, inspection, or proceeding following therefrom leads to a censuring of the employer, the employer is forbidden from engaging in reprisals against employees. If an employee suffers a reprisal, he or she can file a complaint with OSHA to receive rectification. The amount of time allowed for such a complaint varies depending on the relevant act, listed here:
30 Days for:
• Occupational Safety and Health Act
• Clean Air Act
• Comprehensive Environmental Response, Compensation and Liability Act
• Federal Water Pollution Control Act
• Safe Drinking Water Act
• Solid Waste Disposal Act
• Toxic Substances Control Act
60 Days for:
• International Safe Carrier Act
90 Days for:
• Asbestos Hazard Emergency Response Act
• Sarbanes-Oxley Act
• Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
180 Days for:
• Surface Transportation Assistance Act
• Federal Rail Safety Act
• National Transit Systems Security Act
• Energy Reorganization Act
• Pipeline Safety Improvement Act
In all cases, complaints may be made in writing, but for reprisals under the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Asbestos Hazard Emergency Response Act, the International Safe Container Act, the Federal Rail Safety Act, and the National Transit Systems Security Act, complaints may also be made by telephone.
Extent of Protections
Under all the listed acts, employers are forbidden from taking any form of reprisal against employees for reporting violations, including, but not limited to:
• Termination
• Blacklisting
• Demotion
• Denying overtime or promotion
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment that affects pay, benefits, or prospects for promotion
• Reduction of pay or hours
• Or any other disciplinary action
If you believe you have suffered a reprisal from your employer, contact OSHA or the United States Attorney’s Office that handled your case, and you can receive, according to OSHA’s language, “an order requiring the employer to reinstate the employee, pay back wages, restore benefits and other possible remedies to make the employee whole.”
If you believe you have a whisteblower case against your employer, you can begin by contacting the experienced Alabama qui tam lawyers at Burke, Harvey, & Frankowski, LLC today for a free initial consultation. Whistleblower