Retaliation against Whistleblowers – Some Topical Points

February 11, 2020

Retaliation against Whistleblowers – Some Topical Points


Paramount to having a working whistleblower statute, is having strident anti-retaliation provisions protecting the whistleblower, and successfully navigated by the right whistleblower law firm. There’s some constant themes for successfully blowing the whistle.  First of all, before you can feel assured that you’re entitled to any protections of the whistleblower statutes you need to determine if you’re a whistleblower. Sounds simple enough, but it’s not. I like to analogize this with the medical profession and just because there’s a lot of information online about diagnoses and diseases you shouldn’t go online and diagnose yourself or else you will wind up having a lot more diseases then you actually have. It’s a phenomenon in medical school where everyone winds up thinking they have every medical condition they are learning about. Similarly, you may read online that your fact pattern sounds similar to that of someone else who obtained a large whistleblower award and then automatically conclude you are a whistleblower and entitled to the same protections and pre-suppose that you will obtain the same award.  But subtle differences in fact patterns create profound distinctions. Just like you don’t have the ability alone to differentiate whether you have a cold, the flu, or god forbid the coronavirus, you need to rely on the medical professionals to make the diagnosis, with the law you need to allow a whistleblower lawyer to evaluate your claim to see if in fact you’re entitled to whistleblower protections. That’s the second major theme, trust the professionals or you will wind up much worse than when you started.

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Politics aside, whistleblowers are prevalently in the news with the recent re-allocation of Colonel Vindman and the recall of Ambassador Sondland. This blog is apolitical and an attempt to clinically address whistleblower issues. Our whistleblower lawyers only represent whistleblowers. We don’t represent or defend companies from whistleblowers, so our perspective is from defending and protecting them. As a former FBI Special Agent, I often lecture on the subject of whistleblowers at national conferences. At one conference a prominent defense attorney was speaking candidly and indicated that once he identifies who the whistleblower is, he counsels his client to terminate their employment and pay the whistleblower retaliation award later since the continued presence of the whistleblower can lead to incalculable other problems and damages.

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It was very eye-opening.  From our experience, once a whistleblowers identity is known they may be subject to retaliation, being frozen out, or want to leave and that’s why when their identity is still anonymous its important for us to counsel to consider your employment options elsewhere in case that occurs.  If I had to make my best predictions what will occur with the cases of Sondland and Vindman in the litigation realm, Sondland will probably not commence any action, and even if he did the Courts will not second guess the authority and ability of the executive branch to appoint and recall ambassadors for any reason they desire.  Vindman probably will commence an action, but they question will be one of damages.  If his assignment is changed, but there is no diminution in pay and he is treated respectfully with prestige at his new assignment it will be a challenging case as an element of most litigation is establishing damages.

Both those very hot political situations are different than the whistleblowers our firm handle since those cases involve whistleblower protections for federal employees.  Our whistleblower law firm mainly handles cases under the False Claims Act which handsomely provides whistleblower awards for insiders who blow the whistle on widespread defrauding of Medicare of Medicaid. Types of Medicare Fraud and Medicaid Fraud include upcoding, billing for services not rendered, billing for off campus services at on campus rates, kickbacks, opioid abuse and over prescription and many other ways providers defraud the federal government.  First, one needs to determine if the fact pattern is actionable under the False Claims Act and then a determination can be made whether if there is retaliation the individual(s) are entitled to protection from the strident anti-retaliation mechanisms the False Claims Act provides.