Whistleblower Protection

Whistleblowing, or “blowing the whistle”, is the disclosure by an employee in a public or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing which tends to injure a considerable number of people.

Whistleblower is a person that sees illegal or unethical activities within their workplace and reports these violations to law enforcement and other government agencies, when their bosses refuse to do anything or look the other way.

Whistleblower law includes the statutes that protect employees from being terminated or otherwise discriminated against in retaliation for exposing suspected dishonest or illegal activities or wrongdoings, which violate the public trust, occurring in their place of employment.

The Whistleblower protection act protects federal employees who disclose evidence of waste, fraud, or abuse.

Protected whistleblowing is defined as disclosing information which the discloser reasonably believes to provide evidence of:

  • A violation of law, rule, or regulation,
  • Gross mismanagement,
  • Gross waste of funds,
  • An abuse of authority, or
  • A substantial and specific danger to public health or safety.

The underlying purpose of whistleblower protection laws is to allow employees to stop, report, or testify about employer actions that are illegal, unhealthy, or violate specific public policies.

A disclosure is protected even if the whistleblower is wrong, so long as the whistleblower reasonably believed the disclosure was correct. There is no legal requirement that a whistleblower report first through his or her chain of command, though it may be best to do so in some situations.

The following elements are the basic components of most whistleblower protection claims:

  • that the plaintiff is an employee or person covered under the specific statutory or common law relied upon for action;
  • that the defendant is an employer or person covered under the specific statutory or common law relied upon for the action;
  • that the plaintiff engaged in protected whistleblower activity;
  • that the defendant knew or had knowledge that the plaintiff engaged in such activity;
  • that retaliation against the employee was motivated, at least in part, by the employee’s engaging in protected activity;
  • that plaintiff was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions or privileges or employment; or suffered some other wrong actionable under state tort or contract theory;
  • that the plaintiff can demonstrate, by a preponderance of the evidence, that he or she would not have been subject to an adverse action in the absence of their protected whistleblower conduct.

Many states have enacted whistleblower statutes, but these statutes vary widely in coverage. Some statutes apply only to public employees, some apply to both public and private employees, and others apply to public employees and employees of public contractors. Unlike their federal counterparts however, these state levels generally do not provide for the payment of compensation to whistleblowers, but instead concentrate on the prevention of retaliatory action toward the whistleblower.

Thomas Elliott

Education: Brooklyn Law School, Brooklyn, New York. Pace University, White Plains, New York.
Professional Associations and Memberships: American Bar Association, New York State Bar, The Association of the Bar of the City of New York, Brooklyn Bar Association, National Academy of Elder Law Attorneys (NAELA).

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