The act of LAWFUL whistleblowing is critical for governments and corporations to run effectively, efficiently, and in compliance with the law. By nature, the act of whistleblowing carries with it significant risk to the whistleblower. There are two critical considerations whistleblowers must take into account:
- The manner in which they disclose the wrongdoing; and
- Protecting oneself against retaliation/reprisal for engaging in protected activity.
Whistleblowing & Protected Activity
It is critical for individuals who are contemplating disclosing wrongdoing to consult with an attorney as soon as possible. Depending on the nature of the disclosure and the status of the employee, making a disclosure improperly may invalidate future protections against reprisal. This makes the disclosure “unprotected.” Furthermore, the nature of the disclosure may dictate the manner by which the disclosure must be made so as not to violate any applicable laws. The best example of the latter would be that Intelligence Community whistleblowers must follow prescribed guidelines for disclosing wrongdoing without improperly handling classified information. An improper disclosure by a member of the Intelligence Community may not only invalidate future protections, but may result in unintended legal consequences.
Ultimately, the disclosure must be done properly and strategically to make it “protected” and avoid unintentionally violating any laws.
In addition to disclosing wrongdoing, the False Claims Act empowers individuals who are not members of the Federal Government to file actions against federal contractors for engaging in fraud against the government. A qui tam is a lawsuit brought by a private citizen (ie. “whistleblower”) against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there is a statute which provides for a penalty for such violations. Under the False Claims Act, if the government pursues the allegation, the whistleblower is entitled to 15 to 25 percent of what the government recovers. If the government declines to join the qui tam lawsuit and the whistleblower proceeds, the whistleblower is entitled to a reward of 25 to 30 percent of the recovery.
Protected Activity Outside of Traditional Whistleblowing
Depending on the status of the individual and the organization for which they work, individuals may engage in protected activity outside of the traditional notion of “whistleblowing” (ie. disclosing wrongdoing). Participating in an investigation, whether criminal or administrative, or cooperating with an Office of Inspector General inquiry, may qualify as being protected. Again, these “protections” vary depending on the status of the employee and whether they are federal employees, federal contractors, or private-sector employees.
As a consequence of engaging in protected activity, whistleblowers may be retaliated/reprised against. This, unfortunately, does happen. Contrary to popular belief, the notion of whistleblower “protection” is a misnomer. Protected activity can not prevent officials from taking the action. Instead, the protected activity allows the employee to challenge the reprisal action(s) taken against them. In the context of a federal employee, Title 5 Section 2302 defines what personnel actions are reviewable for evidence of reprisal. Depending on the status of the employee, these actions can be appealed to the Merit Systems Protection Board (MSPB) through the Office of Special Counsel (OSC) or to their Office of Inspector General. However, members of the Intelligence Community do not have access to the MSPB and OSC, and they must file with their Office of Inspector General.
Presidential Policy Direcive-19 (PPD-19) and the 2014 Intelligence Authorization Act made security clearance actions reviewable for evidence of reprisal. As background, in 1988 the Supreme Court of the United States held that Federal Courts are unable to review these actions. Egan v. Department of Navy, 484 US 518 (1988). Accordingly, OSC and MSPB are unable to review security clearance actions. To address this, in 2013 and 2014 the President and Congress directed the Intelligence Community to create a process to review security clearance actions for evidence of reprisal.
Compass Rose is uniquely qualified to handle whistleblower cases. The firm understands the various issues clients face and the numerous venues that are available to them in seeking out remedies. Moreover, Andrew P. Bakaj, the firm’s Managing Attorney, advised key elements of the Federal Government in creating policies, procedures, and guidelines to comply with the President’s 2012 policy directive. The firm not only understands the issues whistleblowers face, but the options available to them that are critical to their case’s success.