Legal Insider: What is a Whistleblower?

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We thought that an article on whistleblowing would be timely given the recent news involving the whistleblower complaint involving Ukraine. A whistleblower is simply an individual who learns of illegal or unethical activity (or waste, fraud and abuse) and reports it.

Most whistleblowers do not end up famous, but they often play a critical role in holding employers and the government accountable for engaging in illegal activities. Too often illegal activities are ignored by an employee for fear of retaliation. Some employees, however, take a stand at great risk to themselves. As a result, many whistleblower laws have developed over the years to protect these individuals.

Whistleblower Laws in the United States and Virginia

The United States has had whistleblower laws in effect since 1863 during the time of President Abraham Lincoln, who wanted to encourage individuals to report rampant fraud against the federal government in response to purchases during the Civil War. As a result, the False Claims Act (FCA) became law and encouraged private citizens to bring lawsuits against individuals and companies who were defrauding the government.

As an incentive, the whistleblower could receive a percentage of whatever the government recovered from the disclosure. The FCA is still in effect today, though numerous other federal and state laws cover different types of whistleblowers.

In 1989, the Whistleblower Protection Act (WPA) was enacted to protect federal employees who disclosed illegal actions by the federal government and waste, fraud and abuse. The WPA sought to protect federal employee whistleblowers who suffered retaliation for reporting these illegal activities. There are numerous other whistleblower laws at the federal and state levels that protect individuals who disclose different types of illegal activities, such as the Clean Air Act, the Sarbanes-Oxley Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act (OSHA).

These are just some of the existing whistleblower laws that can protect individuals that make disclosures. Additionally, many states allow employees, either by statute or common law, the ability to challenge retaliation related to whistleblowing activities.

In Virginia, because the state has not yet enacted general state whistleblower protections for employees, the courts have allowed employees to bring whistleblower claims through common law. These are known as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).

General Test to Qualify for Whistleblower Protection

The importance of being a whistleblower is that certain protections can then come into play after the disclosures are made. Generally, once a disclosure is made, an employer finds out who disclosed the illegal activity and are very unhappy with the employee. This often causes employer retaliation against the whistleblower.

Whistleblower protection laws usually follow the same 3-part test to determine if an employee can prevail on a retaliation claim. In general, this requires:

1. That the individual had a good faith belief that their employer was engaging in illegal activities or waste, fraud and abuse and they reported it
2. That the individual’s employer knew that the individual made such disclosures
3. That the whistleblower suffered retaliation due to the disclosures

Depending on the statute involved, a whistleblower can receive legal protection from retaliation (the most common retaliatory action involves termination from employment), damages, back pay and attorney fees. Each statute is different so individuals should consult with an attorney if they believe that they may need whistleblower protection.

Conclusion

If you need assistance with whistleblower representation or other employment issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.