Whistleblowing is a hot area of legal practice.
Well, whistleblowing can mean big money for the corporate defense attorney, for the whistleblower, and for the whistleblower’s lawyer.
There is of course the False Claims Act – which has secured $27 billion in recoveries to the U.S. Treasury – and delivered $2.8 billion in bounty payments to citizens who have successfully blown the whistle on corporate crooks stealing from the government.
And there is the newly enacted Dodd-Frank whistleblower provision which promises similar millions to citizens who report violations of the Foreign Corrupt Practices Act (FCPA) – among other laws.
Even the IRS has a program that rewards whistleblowers who blow the whistle on tax frauds.
Just yesterday, a copy of The Whistleblower’s Handbook by Stephen Kohn was dropped by our office.
Whether you are a corporate crime defense counsel, a worker thinking on turning in your crooked boss, or a whistleblower’s lawyer – we recommend you pick up this book.
But until you do, we have distilled it and come up with the Top Ten Things You Should Know Before You Blow the Whistle.
Number Ten: Whistleblowing is More Effective than Regulation in Controlling Corporate Crime. PriceWaterhouseCoopers interviewed 5400 CEOs, CFOs, and CCOs from nearly every major global corporation. Key finding: Whistleblowers are the most effective source of information in both detecting and rooting out corporate criminal activity.
Number Nine: Don’t Delay. You might have the best case in the world – worth tens of millions to the government and millions to you. But if you don’t file it on time, it could be worth nothing. Delay is deadly.
Number Eight: Be Prepared for All Hell to Break Loose. “Whistleblowers need to be prepared,” Kohn writes. “If they think blowing the whistle will automatically win them a grand prize, they should think again. They need to understand the serious nature of whistleblowing, the impact it may have on their career and family, and the necessary steps that they may take to protect themselves.”
Number Seven: Embrace Your Inner Whistleblower. “I am not a whistleblower – I was only doing my job!” That is something you will commonly hear from whistleblowers. Kohn says that “no one takes the job intending to become a whistleblower.” But sooner or later, you’re going to have to embrace your inner whistleblower – or you will be in trouble. “Without accepting this change in status, employees cannot begin to take the crucial steps to protect their careers.”
Number Six: Don’t Take Hush Money. After bringing a case, the corporation might try and buy you off. One famous case involved Brown & Root in 1987 and a journeyman electrician, Joseph Macktal, Jr. Macktal was fired from the Comanche Peak nuclear power construction site in Stevensville, Texas for raising safety concerns. “Brown & Root wanted his silence and was willing to pay,” Kohn writes. “Macktal’s attorneys wanted their fees and strongly urged him to accept the money offer.” He did. But the settlement – which included a gag order – “ate at Macktal’s conscience.” He eventually hired new attorneys and successfully challenged the settlement agreement.
Number Five: Beware of Hotlines. Big corporations often set up hotlines, with toll free numbers, and urge employees who witness wrongdoing to call the number and report the “concern.” Should a whistleblower do it? Like the hotline programs themselves, Kohn is conflicted. The hotline programs “empower the fox to police the chickens,” he writes. “But they can also put the company on the spot. They force the company to live up to its commitment to transparency and accountability.”
Number Four: Don’t Take Legal Advice from a Corporate Compliance Officer. “Compliance officers and hotline investigators work for the company – they do not work for the employees,” Kohn says. “They are under no obligation to inform employees of their rights or the laws that may protect them.”
Number Three: Be Skeptical about Corporate Confidentiality. “It is well known that the very nature of an employee’s complaint can act to ‘fingerprint’ the worker,” Kohn says. “Often, only a small group of workers are aware of the details concerning a regulatory violation.” When a corporate official commences his or her review of the complaint, “it is often not difficult for the employer to figure out the identity of the whistleblower.”
Number Two: Don’t Break the Law. Remember, if you are a whistleblower, you are blowing the whistle on the corporate law breakers. You don’t want to be caught breaking the law while whistleblowing. “This is a basic rule that must be followed,” Kohn says. “If a court determines that an employee broke a criminal law in order to obtain evidence in the case, the employee will suffer a sanction. The case may be dismissed, the employee’s credibility will be attacked, and there may even be a referral for a criminal prosecution.”
Number One: Follow the Money. According to Kohn, this is the single most important rule. “Four major federal laws provide for the payment of reward to whistleblowers who can prove that their employers committed fraud,” Kohn writes. “These rewards can be large.” I think this translates into – make sure you pick a lawyer who knows what law delivers the most bang for your career – which you are about to flush down the toilet.
Kohn is executive director of the National Whistleblower Center. For the past 25 years, he’s been in the trenches fighting the whistleblower wars. The lessons learned from those wars have been distilled in this book.
And he poses two questions to his fellow Americans:
“If you think your boss may be a crook, if you think there may be safety violations at work, if you think your managers are cheating in tax payments, violating terms of government contracts, committing financial frauds, or violating the law, should you just stay silent?” he asks. “Or should you figure out whether or not you could be a potential whistleblower, and then carefully determine what to do when the boss may be a crook?”
RUSSELL MOKHIBER edits the Corporate Crime Reporter.