What are Whistleblowers?

Whistleblowers are individuals who report information about a wrongdoing committed by an organization. They are often employees (or former employees) who have witnessed fraudulent or illegal activity by their employer, and they have decided to speak up about it. However, many persons do not report the wrongdoing for fear of retaliation. Some whistleblowers have experienced retaliation in various forms, ranging from demotions, withholding of pay or advancement opportunities, threats of legal action, and even discharge from employment.

Various federal and state laws have been enacted to protect those who report an employer’s wrongdoing. Under these laws, whistleblowers may receive compensation such as double back pay, special damages, and legal fees. However, the statute of limitations  – the timeframe for initiating a legal action against an employer – will depend on the applicable state and federal laws, and in some cases it can only be 30 days.

Whistleblower Protections

The main objective of “whistleblower laws” is to protect individuals who report wrongful conduct from retaliation by the wrongdoer. These laws provide a specific reporting mechanism for the whistleblower and hold the retaliating organization accountable for any found misconduct. An infringing organization is subject to penalties for the organization’s wrongful behavior, including providing redress to the whistleblower for any retaliatory acts against him or her.

Various whistleblower protections apply depending on the type of organization committing the wrongdoing and the type of wrongful conduct.  The responsible organizations may include government, government contractors, and privately held or publicly traded organizations. The type of wrongful or fraudulent conduct reported may involve government or defense contracts, securities, pharmaceutical, Medicare or Medicaid, education, loans, and grants, among other areas.

In some instances the prohibited conduct is not limited to retaliatory conduct against an employee for reporting a qualified wrongdoing, but also for testifying during the course of an investigation, or for refusing to participate in an activity, policy or practice that violates the law.

Reporting Requirements

A whistleblower can report illegal or wrongful behavior committed by a government or non-government organization.  However, to secure the protections available, a qualified person reporting must be consistent with the requirements of the applicable law.  This includes filing the disclosure with designated organizations and within specified timeframes. Otherwise, the whistleblower may lose the opportunity for redress.

State Law

In Florida, public and private employers are subject to the provisions of Florida’s Whistle Blower’s Act, F.S. §§448.101–448.105 (1995).  Under §448.101(5) of the act, an employer is liable to its employee for “retaliatory personnel action”  – including discharge, suspension, demotion, or any other adverse employment action – taken against the employee in response to the employee’s participation in any one of three types of protected conduct covered in F.S. §448.102:

(1) an employee who discloses or threatens to disclose the employer’s unlawful activity to a government agency (as long as the employee has provided written notice and an opportunity to cure to the employer before disclosing the unlawful activity to the government);

(2) an employee who assists an agency with an ongoing investigation of the employer’s alleged unlawful activity; and

(3) an employee who objects or refuses to participate in the employer’s unlawful activity.

In addition, public employees cannot be penalized for making disclosures involving a violation of state or federal law that creates a substantial and specific danger to the public’s health, safety, or welfare.

Federal Laws Protecting Whistleblowers

Federal laws with whistleblower protection provisions include those below. They all provide specific reporting mechanisms and statutes of limitations, and each applies in specific circumstances.

• Clean Air Act (CAA)
• Commercial Motor Vehicle Safety Act (CMVSA)
• Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA)
• Department of Defense Authorization Act of 1987
• Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
• Energy Reorganization Act of 1974 (ERA)
• Fair Labor Standards Act of 1938 (FLSA)
• FDA Food Safety Modernization Act (FDA Modernization Act)
• Federal Mine Safety and Health Act (FMSHA)
• Federal Water Pollution Control Act of 1972 (FWPCA)
• Longshore and Harbor Workers’ Compensation Act (LHWCA)
• Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA)
• Occupational Safety and Health Act of 1970 (OSH Act)
• Safe Drinking Water Act (SDWA)
• Sarbanes-Oxley Act of 2002 (SOX)
• Solid Waste Disposal Act (SWDA)
• Surface Mining Control and Reclamation Act (SMCRA)
• Toxic Substances Control Act (TSCA)
• Whistleblower Protection Act (WPA)

Qui Tam Laws

In addition to the above laws, False Claims Act laws have been enacted to enable persons to bring qui tam lawsuits in court on behalf of the state for actions amounting to fraud against the government. These laws exist at federal and state levels and provide additional reporting venues and protections for whistleblowers.

The Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing your options under a whistleblower situation, whether you are the alleged offender, wish to report a violation, or file a retaliation complaint. Click here to contact an attorney now.