Choosing to become a whistleblower is a noble decision, but it is not without risk. Whistleblowers consider any number of factors before making the choice to come forward with the information they have.
With input from a former whistleblower that we’ll refer to as “Dan” to protect his anonymity, let’s take a look at the common themes people confront when deciding whether and how to proceed in righting a wrong.
Motivating Factors
For Dan, who reported fraud at major pharmaceutical companies, “it became an issue of morality, as well as believing that certain aspects of what I witnessed were crimes against children and the elderly. The reality of what I was a part of was tearing me up inside, and I could no longer look the other way.”
Reporting fraud to the government results in financial awards for many whistleblowers, and media recognition for a few, but the complexity and emotional challenges involved indicate motivations that are more ethical than financial. Most people would prefer not to disrupt their own lives, but when they work for or around people engaging in fraud, it’s very difficult to accept the status quo.
Unethical behavior is toxic in the workplace. Imagine you worked in a hospital where you witnessed a colleague submitting Medicare claims that prompted higher reimbursements than the hospital was truly owed. The first time you noticed, you assumed it was a mistake. Eventually, you started noticing that it happened on a regular basis, and that other colleagues were deliberately upcoding as well. Soon enough, you were being pressured by higher-ups to participate in the scheme, and when you declined you noticed a change in how you were treated. The marginalization could be subtle, or it could be overt—like being unreasonably blocked from a promotion.
That’s a discouraging environment to cope with every day, and it can start to erode employees’ confidence about what’s right, or their desire to speak up. Unfortunately, being in environments where fraud is systemic can make it very difficult for people to avoid engaging in fraudulent activity, let alone to become a whistleblower. What drives people to eventually speak up is something far more visceral than wanting to claim an award or to be recognized for heroism.
Internal procedures
Although ideally fraud would be addressed immediately after an employee reported it through internal channels, this is not always feasible. Companies and organizations with systemic, deliberate fraud may not have the most reliable reporting processes.
There have been many cases where whistleblowers went through the appropriate internal channels and no changes were made to address the fraudulent activity. This is often the tipping point that compels people to pursue legal action.
It is very important to note that internal reporting procedures and whistleblower protections may differ based on the industry or agency in question. Federal organizations involved in law enforcement or national security tend to have far more complex legislation for reporting procedures.
Anonymity
The prospective whistleblower is also faced with the possibility that his identity will at some point be revealed, and that the company will attempt to retaliate. Corporate retaliation is illegal, but the threat of it can unfortunately act as a deterrent to many employees who want to report fraudulent activity.
A whistleblower's identity could be revealed either voluntarily or by media outlets after a settlement or judgement is reached. While the investigation is ongoing, however, the government does not inform the company being investigated, nor does it disclose the whistleblower's case information. In many fraud cases, it is also possible to submit a tip anonymously.
Bear in mind that if the government chooses to pursue an investigation, it has to verify the name of the anonymous whistleblower to ensure that she is a qualified source. These types of protocol in whistleblowing cases are exercised with confidentiality as a top priority.
Legal options
Anyone who suspects that their company may be defrauding the government should do as much research as possible on their legal options. We won’t sugarcoat it—in the event that the government decides to pursue fraud allegations, justice is not immediate. The entire process can take several years.
The legislation around whistleblowing is clearer now than it was in past years, but there are still a lot of small details that can prevent tips from being investigated. “I advise potential whistleblowers to familiarize themselves with the Federal False Claims Act, with a major focus on Rule 9b, the ‘rule of specificity,” says Dan.
Rule 9b is a contentious issue in courts around the country, as not every judicial district agrees on what, exactly, it means. The rule suggests that qui tam relators’ tips must pertain to specific false claims violations. The degree of specificity has not been nationally determined, however, and the Supreme Court has not resolved the issue definitively.
In some courts, it is considered sufficient to present evidence demonstrating that there was a specific scheme in place to submit false claims. In others, it’s necessary to demonstrate that the false claims themselves were actually submitted.
These types of nuances can make it difficult to navigate the whistleblowing process alone, even if you have a general understanding of the legal system. Dan suggests that whistleblowers avoid going it alone. “Choosing a lawyer/law firm to help you with your qui tam is a very important decision and often crucial to your case, even if you have the very best evidence.”
Anti-retaliation protections
Dan faced an attempt at retaliation, but was able to get justice for his former company’s illegal action. “A major pharmaceutical company denied my unemployment for over 6 months, so the state threatened to sue and the checks came.”
The False Claims Act contains protections for whistleblowers, so it’s important to know which ones apply in your industry, or to speak with a lawyer about your specific case. In most cases, employees who experience retaliation as a result of rejecting or reporting FCA violations have three years to pursue legal action. In the event that illegal retaliation is discovered, whistleblowers may be eligible for applicable back pay or damages.
For federal employees, the Whistleblower Protection Program prohibits reprisal for reporting certain types of federal wrongdoing. The procedures involved in reporting federal fraud are highly specific and depend on the government body in question.
Prevalence of fraud
One of the subconscious barriers that can prevent people from blowing the whistle is disbelief that their employers or colleagues could even be capable of fraud. While it may seem that the types of fraud that Dan witnessed are uncommon, fraud occurs in every major industry. Within healthcare it is rampant. Dan believes that its prevalence is for the following three reasons:
- “There is a large degree of blind public trust in healthcare. People still trust that pharma/biotech/medical device companies, hospitals, nursing homes, etc. and all doctors have their best interests in mind. In other words, people still believe that their health is more important to others than the others' wealth.
- The healthcare system is a broken system especially when it comes to Medicare, Tricare, and Medicaid. [Those agencies] pay and then question later, so they are easy to defraud.
- Our largest expenditure as a nation is healthcare and thus where there is big money, there is big fraud.”
Learn more about your rights as a whistleblower here.
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