Blowing the whistle on dangerous and deceitful practices is more important now than ever.
Whistleblowers play a crucial role in keeping the public healthy and safe. Protesting fraud and abuse – whether as an employee of the government, a health care facility, or a pharmaceutical company – is a courageous act that should not lead to retaliation or termination.
There are laws that protect whistleblowers against retaliation, and ensure that their brave actions are not punished.
What is Public Health and Safety Whistleblowing?
While not legally defined, any employee of a hospital, nursing home, health care facility, or any other entity that deals directly with public health and safety who blows the whistle on dangerous or fraudulent acts may be a protected whistleblower if covered by one of the laws detailed below.
What Laws Protect Public Health and Safety Whistleblowers?
Despite the urgent need for reliable and safe practices in health care facilities, laboratories, and elsewhere, there is currently no federal law that protects employees from retaliation if they report public health threats, and the federal law governing workplace safety—the Occupational Safety and Health Act—does not allow employees to sue for retaliation.
However, a patchwork of federal and state laws may protect public health and safety whistleblowers, depending on the facts of the matter.
The Food Safety Modernization Act (FSMA) includes an anti-retaliation provision that states that any employee engaged in the “manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” may not be retaliated against because she either raised objections concerning FSMA violations at her workplace or reported behavior to the government that she reasonably believed constituted a violation of the FSMA.
The Whistleblower Protection Act (WPA) for federal employees protects against adverse personnel actions resulting from an employee’s reporting of what he or she reasonably believes to be: a violation of a 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.
For employees who blow the whistle on violations of environmental standards, several laws prohibit retaliation, including the Clean Air Act, the Federal Water Pollution Act, and more. And for nuclear whistleblowers, the Energy Reorganization Act of 1978 provides strong protections for employees who provide information about, or participate in, investigations relating to violations of nuclear safety laws and standards.
Additionally, state statutes can offer protection against retaliation for safety and health whistleblowers. While state statutes differ in some ways, these laws generally make it illegal for an employer to terminate an employee because that employee either refused to engage in unlawful conduct or reported unlawful conduct on the part of the employer. These laws can offer protections against retaliation to whistleblowers who take a stand against their employer’s illegal activity.
Finally, for government contractors that play a role in ensuring public health and safety through its services or products, the False Claims Act (FCA) may be a useful avenue for blowing the whistle. The FCA prohibits false or fraudulent claims made to the government, and information provided by a whistleblower is often critical to the U.S. Attorney General’s decision to file an FCA lawsuit. Whistleblowers can file qui tam lawsuits, which private individuals bring in the name of the government. Under the FCA, whistleblowers are entitled to between 15% and 30% of any settlement or judgment won on behalf of the government. Crucially, the FCA has a strong anti-retaliation provision that prohibits an employee from being "discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer" in response to that whistleblower filing a report or protesting the fraudulent actions.
Who is Protected Under these Laws?
Whether an employee is protected from retaliation relies mostly on the facts of each individual case. However, there are general guidelines that potential whistleblowers can follow to more safely blow the whistle.
Given that there is no blanket federal law concerning public health and safety whistleblowing, it is critical for a whistleblower to frame her reports of practices unsafe or harmful to the public in a way that implicates a legal violation. It is important to not just complain that an act is harmful, but articulate why it is specifically a violation of the law.
Secondly, putting a report in writing can provide valuable proof of the protected activity. Employers frequently claim that the employee never reported legal violations, but rather simply made a complaint or disagreed with a business decision. This is a far harder case to make if the report is in writing. The report should be professional and the report should be made to someone who can address the problem, such as a supervisor or a compliance officer. It is also important to remember that under some laws, a whistleblower is protected only if she reports the problem externally to law enforcement or other appropriate government officials.
Finally, a whistleblower needs to be very careful about taking company documents or data, since doing so can backfire and jeopardize the whistleblower’s legal protections. A whistleblower can generally review documents to which she has access in the normal course of business, but if she searches through a document, computer server, or even a filing cabinet that she does not have a right to access, she may be giving the company a non-retaliatory basis for terminating her. A whistleblower may also be tempted to retain incriminating documents if she is terminated after blowing the whistle. The law governing such conduct is unsettled, so it is best for a whistleblower to consult with a whistleblower attorney about retaining such company documents.
What Should I do if I want to Blow the Whistle?
Blowing the whistle on abuses and malpractice that harms the public’s health and safety is a serious and courageous act. However, the landscape of state and federal whistleblower laws is complex and navigating the patchwork of legal protections requires experienced and expert attorneys, which is why potential whistleblowers should always seek legal guidance before filing a report or going public with a claim.