Whistleblowing serves as a valuable tool in exposing corruption, fraud, and other unethical practices within organizations. As a result, it plays a vital role in promoting accountability and protecting the interests of the public.

However, discovering wrongdoing in the workplace can put employees in a difficult position. Speaking out against their employer may feel disloyal and raise questions about retaliation from managers and co-workers. Yet there may also be a strong moral compulsion to speak the truth and right certain wrongs. This article will outline key factors to consider before blowing the whistle on an employer, helping individuals navigate the complex decision of whether to come forward or not.

Gather Relevant Information

As a whistleblower, your role is to gather credible, reliable, and relevant information, which can provide the basis from which a successful investigation can unfold. The Securities and Exchange Commission (SEC) has laid out certain guidelines that clarify the type of information that can be submitted:

• It must be ‘original information’. This means information that is obtained through independent means, through one’s own knowledge or analysis and that is not publicly available or already known to the SEC.
• Information that does not meet the criteria of being ‘original’ includes any material that is protected by attorney-client privilege, or information gained through specific job titles, like an officer or director, or internal company reports.

Ensuring any information you submit meets these guidelines increases the likelihood of it being accepted and used as valuable evidence in an investigation.

Seek Legal Advice

Uncovering financial misconduct or other wrongdoings within your organization is not in itself enough to initiate a successful investigation. It is necessary to also follow the proper protocols and escalate the matter through the right channels. Failure to do so may not only jeopardize your case but also result in unintended consequences, such as potential criminal charges for disclosure of confidential information.

To safeguard your own interests and ensure you adhere to the appropriate requirements, it is essential to seek legal advice from experienced whistleblower lawyers such as those at Oberheiden who understand the procedural and statutory requirements needed to file a successful whistleblower claim, in addition to the practicalities of stepping forward as a whistleblower.

An attorney who has legal expertise in this area will also understand the statutory protections afforded to whistleblowers such as those under the False Claims Act and the Dodd-Frank Act which protect whistleblowers against retaliation from their employer. Additionally, they can offer guidance in relation to whistleblowers’ entitlement to financial compensation.

Eligibility for Financial Rewards

In certain cases, whistleblowers may be entitled to monetary rewards. Under the Dodd-Frank Act, whistleblowers who provide the SEC “with original information that leads to a successful enforcement action” will be eligible for between 10% to 30% of the total monetary sanctions collected from a related investigation. According to an SEC press release, since issuing its first award in 2012, the SEC has awarded approximately $1.2 billion to 249 individuals.

It is worth noting that the potential for a financial award is only available to whistleblowers who provide original information that assists the SEC or the Commodity Futures Trading Commission (CFTC) in bringing a successful enforcement action, and not other regulatory bodies. While many whistleblowers may feel a moral imperative to come forth with information rather than simply pursue a financial reward, the prospect of compensation can often act as a powerful incentive to take action.

Understanding the specific rules and requirements of the relevant whistleblower programs along with your motivations for coming forward can help you decide whether or not to blow the whistle, either for financial or ethical reasons.

Non-Monetary Costs

Raising the alarm on misconduct, wrongdoings, or irregularities within your organization does carry certain risks. While federal laws offer whistleblowers various protections against retaliation from their employers they do not provide a guarantee such adverse action won’t occur.

Whistleblower laws contained in the Dodd-Frank Act may prohibit employers from retaliating against employees by engaging in adverse actions such as reducing their pay or hours, denying them overtime, or firing them, but this does not prevent them from circumventing these rules altogether. This fact is also acknowledged by the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) :

“Because an adverse action can be subtle, such as excluding employees from important meetings, it may not always be easy to recognize.”

As a result, an employee who blows the whistle at work may have to face unwanted consequences which are difficult to address under the law. For example, they may experience isolation from co-workers, be given low-quality or unsatisfying work assignments, or face other forms of subtle workplace discrimination that can affect their long-term employability and career advancement in their chosen field. This makes whistleblowing a risky strategy, especially in cases that do not lead to a successful prosecution.

By carefully considering these factors you can make an informed decision on whether or not to proceed with whistleblowing.