“Whistleblower” is a word we hear more and more of lately, but becoming a whistleblower can be a daunting prospect. More often than not, people who become whistleblowers report wrongdoing at their place of work. This is not surprising given that employees are usually the first to know when a business has committed wrongdoing. While there are some federal and state laws that can protect you when reporting your employer for wrongdoing, these laws don’t apply in every case, so it’s important to do your research before you decide to blow the whistle. Here are 5 things everyone should consider before blowing the whistle on their employer.
1. Should I report the wrongdoing to my superiors?
One of the first questions to consider is whether you should report the wrongdoing to someone at your company, or take the information to an external agency. Some companies have ethics and compliance hotlines that encourage employees to report within the company, however, most companies are under no legal obligation to keep your identity anonymous and reporting internally can increase the risk that you face retaliation. This is especially true if you are reporting someone more senior than you within the company. As a general matter, if you are reporting serious wrongdoing, or you think you might be at risk of retaliation, you should consider reporting to a government agency that guarantees anonymity.
2. What agencies can I report to?
Picking the right agency to report to is a critical step for a whistleblower, as who you report to will affect your legal rights, including whether you are protected from retaliation. Unfortunately, there is no central organization that handles all whistleblower complaints and you will have to pick from a number of agencies. The best agency to report to will depend on where you live, what industry you are in, and what conduct you wish to report. Some of the common agencies people report to are the SEC, the IRS, the CFTC and OSHA, but there are many others. Potential whistleblowers should research guidelines for reporting in their industry and in their state. If in doubt, speak to an attorney. If you believe you have witnessed a violation of the Foreign Corrupt Practice Act (FCPA) you can take FTI Law’s free online evaluation to help determine if you can become an FCPA whistleblower.
3. What are my goals?
A whistleblower’s goals can include; exposing the wrongdoer, stopping the conduct, protecting oneself from retaliation or drawing attention to misconduct. While most whistleblowers want a combination of these, you need to prioritize which one is most important to figure out what the best way to report is. For example, bringing allegations to the media is unlikely to offer you any legal protection, but it may be the fastest way to get public attention for the issue. On the other hand, reporting to government authorities can offer you the best protection from retaliation, but government investigations are long and (usually) confidential, meaning that it could be years before people learn about the conduct. Before you blow the whistle, make sure you have prioritized your goals so that you can make the best decision on how to blow the whistle.
4. Can I report anonymously?
Becoming a whistleblower can make you a target for retaliation not only in your company, but also in your industry. As we mentioned above, while companies often advertise that they have anonymous reporting channels, these can be poorly maintained and there is no guarantee they will keep your identity anonymous. If you want to report anonymously, you should strongly consider reporting to an external agency that has a policy and system for anonymous reporting. This is something offered by the SEC, CFTC and IRS.
5. Should I speak to an attorney?
Always speak to an attorney. There is no downside to speaking to an attorney, but there is a lot of upside. Almost all employment law attorneys and whistleblower attorneys will offer a free consultation, and many will represent you on a contingency fee basis, meaning that they only get paid if you do. Speaking to an attorney is also confidential, and the attorney is forbidden from disclosing your conversations to anyone without your permission, even if you don’t hire them. Attorneys can also advise you on more complicated aspects of whistleblower reporting, like whether you might be entitled to a whistleblower award. The average SEC whistleblower award is over $4 million, so it is certainly something worth thinking about.
Armed with these five tips, you should be in a good position to start your journey as a whistleblower.
About the Author
John Joy is the Managing Attorney and founder of FTI Law, a law firm that specializes in reporting corporate wrongdoing. John is a New York whistleblower attorney who has worked for almost a decade on financial crime and regulatory cases around the globe.