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What Happens to Whistleblowers?

written by: ciel s cantoria•edited by: Linda Richter•updated: 10/9/2010

Since many court cases of whistleblowing have been successful, we wonder about the cases that didn’t win and for what possible reasons. Can employees lose their jobs for whistleblowing? We came up with examples of such cases and noted which factors brought about negative decisions--and learned why.

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    On What Premises Can Employees Lose Their Jobs for Whistleblowing?

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    Whistleblowing is an individual’s act of reporting a fraud or deception usually being committed by an employer. It is considered as heroic by some and could be aptly rewarded; yet it is also considered as an act of treachery by those affected. This then makes us wonder, for what possible reasons can employees lose their jobs for whistleblowing?

    There are more than fifty-five US whistleblowing laws embodied in various statutes and enactments, incorporated with the “Anti-Retaliation" clause. This was discussed in a separate article entitled Whistleblowing Laws: Know Your Rights. Based on these numerous laws, we have learned about the possible reasons that can make employees lose their jobs for whistleblowing.

    The best way to find out is to explore actual cases of wrongful termination filed by whistleblowers against their employers.These cases were founded on premises that said terminations were acts of retaliation against their whistleblowing actions. Unfortunately, however, the ruling of the respective courts did not favor the employees.

    Take note of the factors that can affect the act of whistleblowing and understand its effects in claims for protection under the Anti-Retaliation clause.

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    Non-Observance of Proper Legal Procedures

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    In any circumstances where an accusation is brought to court for litigation, all accusations are deemed as allegations until all evidence, arguments, and applicable laws have been evaluated. In line with this, the whistleblower has to make sure that he is properly represented in court by legal counsel who has extensive knowledge not only about the laws being violated, but also about laws that govern whistleblowing. Otherwise, the fraud allegations may be proven as true but the employee's claims against acts of retaliation could fail by mere procedural technicalities.

    Case Example:

    An employee blew the whistle on his employer who was furnishing supplies to the government that were of inferior quality, thus resulting in overcharging. The employee was, of course, terminated by his employer, for which a lawsuit was filed by the employee for acts of retaliation due to his whistleblowing. The employee lost his case because his claim was filed 100 days after his termination. This did not adhere to the state's law that claims for protection against acts of retaliation should be made within 60 days from the date that the notice of the adverse employment action is received.

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    Inadequate and Inappropriate Legal, Financial, and Moral Support

    Blowing the whistle against an organization could likewise create a negative impact in the operation of its business. Some laws require that an employee should first put it on record that he has reported the problem to the company and has given his employer the chance to rectify the problem without having to go public, since both parties suffer from the consequences.

    As a whistleblower, you should bear in mind that it is not just a matter of telling on your employer but also a matter of planning and organizing your actions in terms of support, including financial, legal, and moral. Otherwise, your would-be opponent will take advantage of any insufficiency or lack on your part and ignore your issues or concerns.

    Case Example:

    A university professor filed a gender discrimination claim against certain individuals associated with the university. However, some points of the case did not prosper for lack of sufficient and material evidence; hence the court’s summary judgment was for the defendants to pay the professor a certain amount as reimbursement for cost of attorney’s fees and other legal expenses. Thereafter the university professor filed another lawsuit claiming for damages against acts of retaliation based on her previous lawsuit for gender discrimination.

    The professor claimed she was unduly harassed by the university by not being awarded with sufficient salary increases. She likewise claimed that the university manipulated the students into filing complaints against her, which she purported as having stemmed from the university’s acts of depriving her of other services. However, based on a preliminary hearing, the professor’s subsequent claim for anti-retaliation lacked merit. Her allegations of gender discrimination within the university was not proven true due to lack of sufficient and material evidence that constituted gender discrimination. Besides, there was no element of fraud to qualify her previous lawsuit as a whistleblowing act subjected to retaliatory action in the workplace.

    In addition, the professor made further claims that the amount of reimbursement for attorney’s damages awarded to her by the previous court was not enough to cover her actual costs. The court likewise dismissed this claim because the court stated that the professor had no jurisdiction to decide how much attorney’s fees should be awarded as reimbursement.

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    Can employees lose their job for whistleblowing through acts of retaliation in the workplace? Sad to say, but employees can lose their jobs by not observing the proper guidelines for whistleblowing laws. Case histories show that some lost their cases for not having the right legal support and advice, while others lost their cases because they simply could not prove the fraud allegations they brought against their employers.
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    Overextending the Role of a Whistleblower and the Scope of a Whistleblower’s Legal Actions

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    As a whistleblower, your role is only to report, inform, and provide support--not necessarily to investigate but to let others, whose positions are considered as competent and unbiased, conduct the investigation. That way, evidence may be presented as fairly as possible in the court of law, particularly if the matters in question are of national interest, and where a reward is in the offing. Otherwise, your motives for whistleblowing will be questioned and all evidence presented will be tainted.

    Case Example:

    A firefighter publicly disclosed information about his department’s methods of transmitting data in handling wildfires. This of course created a ripple, particularly in insurance-related matters; hence, shortly thereafter, the firefighter was terminated. He filed a lawsuit that he was merely exercising his basic freedom of speech, thus seeking punitive damages for wrongful termination. However, during the course of investigation, evidence was brought to court to show proof that the firefighter was keeping tape-recorded conversations between him and his co-workers. The firefighter lost his case because his concern for public safety was tainted by questions about his real motives, based on the tape-recorded conversations.

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    Observe Company’s Policies on Whistleblowing First as Well as Maintain Proper Employee Behavior

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    Last, before reporting an internal matter that is of grave concern to the company and its reputation, you should first find out if your company has a set of policies and procedures related to whistleblowing and therefore act accordingly.

    In the case that you are ignored or treated unjustly, you should be mentally prepared and not act drastically or insubordinately. The law against acts of retaliation will be compromised by any conduct unbecoming an employee or by acts of insubordination, which could possibly jeopardize your legal protection.

    Case Example:

    A federal attorney was fired by his agency for insubordination by his superior, because the attorney felt that he was being barred from proving the fraudulent case he was working on and investigating. As a result, his termination officially barred him from whistleblowing against the fraudulent act. However, the attorney worked on his own time to prove the fraud, thus making it possible for the government to penalize the company.

    However, the court awarded this attorney only the salary amount that was equivalent to the professional work he put into finishing the investigation, plus attorney’s fees, as court settlement. Claims for act of wrongful termination due to whistleblowing were not sufficient because the attorney committed acts of insubordination.

    All the factors presented above are merely intended to provide the readers with examples as answers, relevant to determining the possibility that employees can lose their jobs for whistleblowing. They only serve as informative guidelines but not necessarily as the bases for legal opinions or decisions.

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    Reference Materials and Image Credit Section

    Reference Materials:

    • Tenth CircuitUnited States Court of Appeals --- http://ftp.resource.org/courts.gov/c/F2/848/848.F2d.1032.87-1869.87-1249.htmlttp://www.whistleblowersblog.org/tags/mspb/
    • Whistleblowing: When it works and Why --- http://books.google.com.ph/books?id=SwuCxfZn_kEC&pg=PA9&lpg=PA9&dq=whistle+blowing+laws+that+protect+public+employees&source=bl&ots=PwxFNahUzJ&sig=I4bXsxgqWToL0fXRFGMb5zcIj1k&hl=en&ei=h2WoTIWkEYelcaOwpOcN&sa=X&oi=book_result&ct=result&resnum=5&ved=0CCYQ6AEwBA#v=onepage&q=whistle%20blowing%20laws%20that%20protect%20public%20employees&f=false

    Image Credits: