What is a Whistleblower?
A whistleblower is effectively an individual who has witnessed or been part of an unethical or illegal process, often against their will as a condition of employment, and decides to submit the incriminating evidence to the proper authorities. Whistleblowers begin the indictment process in cases that are criminal. Whistleblowers are not just restricted to the private sector, but the dynamics of retaliation from cases arising from the public sector can be different. Congress understands the precarious situations that whistleblowers are in and have established legislation for retributive protection.
Cases in the private sector are covered by The Corporate and Criminal Fraud Accountability Act and are enforced by the U.S. Department of Labor. A subset of the Zarbanes-Oxley Act of 2002, the law allows whistleblowers to enjoin the government in any civil claim that the Attorney General will advance to prosecution. The legislation essentially protects employees of publicly-traded companies from the employer and criminalizes retaliation.
In addition to employee protections, the law requires employers to establish a company policy and reasonable protocol to allow whistleblowers an opportunity to present situations occurring within the company that may have been overlooked in normal operations. Conditions of the legislation also require attorneys to become whistleblowers in the event of illegal activity.
The Equal Employment Opportunity Act provides additional protection for cases involving discrimination and retaliation, effectively giving a discriminated individual more legal leverage. The legal protections of remedies in this legislation allow for protections in legal standing for the witness of a discriminating act as well as the victim if the employer retaliates against the informant.
Public sector whistle-blowing is protected by specific legislation. While private sector laws allow the whistleblower to enjoin the government in civil proceedings, The Whistleblower Protection Act covers public sector employees and is enforced by the U.S. Office of Special Counsel. The federal government is essentially investigating itself. The Military Whistleblower Protection Act is similar to federal protection, but is specific to the military and enforced by the Department of Defense Inspector General.
The Dodd-Frank Wall Street Act also increased the protections for whistleblowers and is currently being contested with alternate enforcement rules that would allow special provisions for company retaliation in the event that the information does "harm to the company." The National Whistleblower Center is providing information to the Commodities and Futures Trading Commission regarding policy rule-making in defense of whistleblowers nationwide, claiming the authorization for sanctions against an employee would eliminate any protection that Dodd-Frank allows and would undermine the legislative purpose of exposing corruption.
Companies engaged in illegal activity are well aware that their individual power ultimately rests in the enforcement policies in association with legislation and the enforcement may be effectively more important than the legislation in Qui Tam cases if the company can legally attack the whistleblower.