ATTORNEY NEWSLETTER
Retaliation Takes Serious Toll On Whistleblowers
Potent Remedies In Whistleblower Protection Laws
Burden Of Proof And Damages
All too often, whistleblowers who disclose fraud to their employers, law enforcement, or government agencies suffer retaliation by their employers. Whistleblower retaliation takes a serious toll on whistleblowers and their families both financially and emotionally, including an inability to pay living expenses, reputational harm, alienation, blacklisting, and emotional distress. Federal and California state whistleblower protection laws can provide a potent remedy, but before bringing a retaliation claim, it is necessary to consider include the scope of on the job conduct protected by those laws, the shifting burdens of proof on the employee whistleblower and the retaliating employer, and the damages that a prevailing whistleblower can recover. Evans Law Firm, Inc. has experience in representing whistleblowers in the underlying whistleblower suits and in pursuing retaliation claims. Call us at (415)441-8669, or toll-free at 1-888-50EVANS (888-503-8267).
Scope of Protected Conduct
There are no general State or federal whistleblower protection laws. Rather specific law protect specific types of disclosures, such as fraud against the federal or State government, fraud by government contractors, disclosures of securities and banking fraud, tax fraud, consumer financial protection fraud and anti-money laundering and offshore banking law violations. The main sources of protection for corporate whistleblowers include the following:
- California and Federal False Claims Acts— protecting disclosures about fraud directed toward the government, including actions taken in furtherance of a qui tam action and efforts to stop fraud against the State of California or the U.S. government. Gov’t Code § 12653 (California False Claims Act anti-retaliation statute) and Cal. Labor Code §§ 98.6 and 1102.5 (anti-retaliation Labor Code provisions) and 31 U.S.C. § 3731(h)(federal False Claims Act anti-retaliation provision).
- The Defense Contractor Whistleblower Protection Act (DCWPA) — protecting whistleblowing about gross mismanagement of a federal contract or grant; a gross waste of federal funds; an abuse of authority relating to a federal contract or grant or a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract. 10 U.S.C. § 2409.
- The Sarbanes-Oxley Act (SOX) — protecting disclosures about mail fraud, wire fraud, bank fraud, securities fraud, a violation of any SEC rule, or shareholder fraud. 18 U.S.C. § 1514A.
- The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) – protecting disclosures of wire and mail fraud, bookkeeping violations, illegal accounting practices and other financial fraud committed in the banking industry. 42 U.S.C. § 4201, et seq.
- The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2020 (Dodd-Frank)— protecting whistleblowing to the SEC about potential violations of federal securities laws. 5 U.S.C. § 78u-6(h).
- The Taxpayer First Act (TFA) — protecting disclosures about tax fraud or tax underpayment. 26 U.S.C. § 7623(d).
- The Consumer Financial Protection Act (CFPA) — protecting disclosures concerning violations of Consumer Financial Protection Bureau rules or federal laws regulating unfair, deceptive, or abusive practices in the provision of consumer financial products or services. 12 U.S.C. § 5567.
- The Anti-Money Laundering Act (AMLA)— protecting disclosures about violations of the Bank Secrecy Act. 31 U.S.C. § 5323(a)(5) and (g) and (j).
California also recognizes a common law wrongful discharge tort action (a public policy exception to at-will employment), which generally protects refusal to engage in illegal activity and the exercise of a statutory right.
Burden of Proof
To maximize the likelihood of winning a case (or at least getting the case before a jury), it is useful to select a remedy with a favorable causation standard (the level of proof required to link the protected whistleblowing to the adverse employment action). SOX has a favorable “contributing factor” causation standard, i.e., the whistleblower prevails by proving that their protected whistleblowing affected in any way the employer’s decision to take an adverse action. In contrast, the FCA and DFA require the whistleblower to prove “but for” causation, i.e., the adverse action would not have happened “but for” the protected whistleblowing (albeit there is no need to prove that it was the sole factor).
Damages and Remedies
Variations in the remedies available to whistleblowers under federal anti-retaliation laws may warrant bringing more than one claim. For example, the DCWPA authorizes an award of back pay (the value of lost pay and benefits), and the FCA authorizes an award of double back pay. If the whistleblower’s disclosures are protected under both statutes, then the whistleblower should bring both claims.
While a prevailing whistleblower can recover back pay under both the DFA and SOX (double back pay under the former and single back pay under the latter), the DFA does not authorize special damages, i.e., damages for emotional distress and reputational harm. In contrast, SOX authorizes uncapped compensatory damages. Therefore, a whistleblower protected under both statutes should bring the SOX claim within the much shorter SOX statute of limitations (180 days) to recover both double back pay and special damages.
State law may also provide a remedy, and if the whistleblower can pursue both a statutory remedy and a wrongful discharge tort, the latter may offer the opportunity to seek punitive damages.
Contact Us
If you have information regarding any of these types of fraud contact Ingrid M. Evans at (415) 441-8669, or toll-free at 1-888-50EVANS (888-503-8267), or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Ingrid handles cases involving bank fraud under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA/FIAFEA), the Commodities Futures Trading Commission Whistleblower Program, the Securities and Exchange Commission Whistleblower Program, False Claims Act cases, the FINRA Whistleblower Office and the California False Claims Act. We can help guide your case through a jury trial or toward an equitable settlement. We also handle cases involving physical and financial elder abuse, whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.
