Whistleblowers

Many cases of fraud have been uncovered and successfully prosecuted because an employee was willing to report the abuse despite fear of retaliation, including wrongful dismissal, by the employer. These employees are commonly referred to as whistleblowers, and their legal foundations lie in the qui tam doctrine of English law which allowed individuals to bring action for the king. Whistleblower activity gained importance in the United States during the Civil War with the passage of the False Claims Act in 1863 that allows whistleblowers to receive a share of the civil penalties collected for fraud against the government. Yet legal protections for the rights of whistleblowers developed slowly. In 1986, the False Claims Act was amended to provide whistleblowers acting in good faith protection from retaliation. Most states and several industries have also enacted whistleblower protection laws, yet there is wide variance in both the protections offered and the requirements necessary to qualify for protection. Courts have provided federal, state, and local government whistleblowers protection under the Civil Rights Act of 1871, First and Fourteenth Amendments, and witness protection laws. Whistleblowers in the private sector have only recently received protections through the Sarbanes-Oxley Act. In 1989, Congress eased the whistleblower’s Burden of Proof by establishing the ‘‘contributing factor test,’’ which requires only that retaliation be a contributing factor in a discriminatory action, not the primary factor. Yet whistleblowers’ rights often remain unprotected because the whistleblowers are uninformed or caught in myriad contradicting laws.

KATHLEEN BARRETT

References and Further Reading

• Barnett, Tim, Overview of State Whistleblower Protection Statute, Labor Law Journal 43 (1998): 440–448.
• Hamilton, James, and Ted Trautmann. Sarbanes-Oxley Manual: A Handbook for the Act and SEC Rules. Chicago: CCH Incorporated, 2003.
• Kohn, Stephen M. Concepts and Procedures in Whistleblower Law. Westport, CT: Quorum Books, 2001.
• Kohn, Stephen M., and Michael D. Kohn. The Labor Lawyer’s Guide to the Rights and Responsibilities of Employee Whistleblowers. Westport, CT: Quorum Books, 1988.
• Kohn, Stephen M., Michael D. Kohn, and David K. Colapinto. Whistleblower Law. Westport, CT: Praeger, 2004.
• Lander, Guy P. What Is Sarbanes–Oxley? New York: McGraw-Hill, 2004.
• Ryan, David J., The False Claims Act: An Old Weapon with New Firepower Is Aimed at Health Care Fraud, Annals of Health Law 4 (1995): 127–150.

Cases and Statutes Cited

• Civil Rights Act, Act of 1871, c. 22, 17 Stat. 13
• False Claims Act, Act of March 2, 1863, c. 67, 12 Stat. 696
• Sarbanes-Oxley Act, Act of July 30, 2002, Pub. L. 107–204, 116 Stat. 745

See also Freedom of Contract; Freedom of Speech: Modern Period (1917–Present)