A Whistleblower’s Legal Journey, Part IV: Know Your Rights as a Whistleblower Facing Retaliation

On Behalf of | June 14, 2024 | Whistleblower Law

By Shaun Rosenthal and Danya Rangachar

The following hypothetical scenario is, unfortunately, all too common:

Anna works as a marketer for a publicly traded medical product manufacturer. She knows that the company must track and report most payments to doctors pursuant to the Physician Payments Sunshine Act (PPSA). However, Anna notices that her employer has a practice of misclassifying these payments, which she believes violates the Sunshine Act’s requirements for transparency.¹

Anna reports the misclassification practice to her boss, the chief compliance officer, and the chief executive officer. Instead of addressing her concerns, the company removes her from all her teams and begins an HR investigation. Confused, scared, and uncertain about her future, Anna realizes that her attempt to do the right thing has put her career at risk.

What can Anna do to protect herself from retaliation? This blogpost outlines several laws that can protect whistleblowers who experience retaliation.

Section 922 of the Dodd-Frank Act:

If you know of a securities violation at your company, you can report this violation to the SEC by filing a Tips, Complaint, and Referral (TCR) under the SEC’s Whistleblower Program. However, to be protected against retaliation under this statute, you must report the violation to the SEC while still employed.² If you do face retaliation, you may be eligible to recover double wages for your lost pay.

False Claims Act (FCA):

If you attempt to stop or report fraud against the government, you can also seek protection from retaliation under the FCA. Retaliation claims under the false claims act can be filed alone or in conjunctive with a whistleblower action. The timeline for resolving the retaliation case may depend on which option you choose to pursue.

State Laws and Common Law Protections:

Various states have their own laws protecting whistleblowers from retaliation. The laws by state vary, so it is important to understand which state law applies. For example, under Maryland common law, “the employee must allege that his employer asked him to do something unlawful and discharged him for refusing, not merely that there was an unspoken expectation of silence.”³ But, under Kentucky law, the employee can be wrongfully terminated if they knew even “in the absence of direct instructions to violate the law—that her continued employment would inevitably lead to authorizing fraud.”⁴

Sarbanes-Oxley Act (SOX):

Your company’s unlawful conduct towards you could also be violating SOX and you can work with an attorney to file a charge of retaliation with the Occupational Safety and Health Administration under the Department of Labor. But there are certain conditions that you must keep in mind if you wish to proceed with this route. For example, this act has a strict deadline to file – you must file with them no later than 180 days after the violation or after the date you became aware of the violation.⁵ And, typically, for SOX to apply, the company must be publicly traded.

Why Legal Representation Matters

The statutes and laws identified above apply in different circumstances and offer different remedies. Navigating the legal landscape can be difficult.

If you find yourself retaliated against for reporting illegal activities and are unsure of what to do, consider contacting our firm to speak with a whistleblower attorney today. We are committed to helping whistleblowers navigate their legal journey and ensuring they receive the protections and compensation that they deserve.

¹See 42 U.S.C. § 1320a-7h; see also 42 C.F.R. § 403.904.
²As the Supreme Court in Digital Realty Tr., Inc. v. Somers held: “To sue under Dodd–Frank’s anti-retaliation provision, a person must first ‘provid [e] . . . information relating to a violation of the securities laws to the [SEC].’” 583 U.S. 149 (2018).
³Szaller v. Am. Nat. Red Cross, 293 F.3d 148, 153 (4th Cir. 2002).
⁴Smith v. LHC Grp., Inc., 727 F. App’x 100, 108 (6th Cir. 2018) (emphasis added).
⁵29 C.F.R. § 1980.103(d).

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