In a room where people unanimously maintain a conspiracy of silence, one word of truth sounds like a pistol shot. - Czesław Miłosz
What to do if you uncover illegal or fraudulent activities at your workplace?
Perhaps you work for a trucking company and your employer is intentionally encouraging you to avoid scale stations or ignoring your pleas to make your truck safe for highway use? Maybe you work for a pharmaceutical or medical device company which is intentionally bypassing applicable safety rules and regulations? Or possibly you work in an accounting department and your company is trying to defraud its clients or the government? Maybe you work for a nursing home or hospital that is taking in Medicare money but not really providing a service or providing one that is not medically necessary?
The purpose of this article is to advise you of the statutes that protect whistleblowers and allow them to file actions if they have been retaliated against for coming forward.
Here are a couple of Federal and State Statutes that may apply in circumstances such as this:
The NJ Conscientious Employment Protection Act (“CEPA), provides protection from retaliatory action for employees who "blow the whistle" on their employers. The statute protects those employees who disclose or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that an employee reasonably believes is in violation of a law, rule or regulation, a crime or a violation of public policy concerning the public health, safety, welfare or the environment. The law also protects employees who either refuse to participate in illegal activity or who speak out against the illegal activity of others at their place of employment.
The False Claims Act (31 U.S.C. Sections 3729 through 3733). Under the Federal False Claims Act, a private person, with evidence of fraud against federal programs or contracts, may sue the wrongdoer on behalf of the United States Government. In these actions, also known as qui tam actions, the Federal Government has the right to intervene and take over the action. If the government declines to intervene, the private plaintiff may proceed on his or her own. The statute provides incentive to private plaintiffs to expose fraud, granting them between 15 percent and 25 percent of any award or settlement amount of the money owed to the government.
The New Jersey False Claims Act was enacted in 2008 and basically mirrors the Federal statute. Under the NJ False Claims act, private parties may sue on the state to prosecute third parties who have made false or fraudulent claims for money from the State government. As with the Federal statute, the state statute allows private plaintiffs to sue on behalf of the state and potentially receive a percentage of any verdict or settlement obtained in that suit.
If you suspect that your company or supervisor is violating safety rules and regulations, committing illegal or criminal acts or participating in submitting false bills or defrauding the government, then we recommend that you take the following steps:
1. Memorialize all of the whistleblowing event(s) in writing. Imagine yourself as a police detective writing an incident report. Describe in full detail what happened. Who was involved and who witnessed it? When did the incident(s) take place? Where did it/they take place? Write down, to the best of your ability, all of the specific conversations that took place. If you can recall exact dialogue, then place those sentences down in quotations.
2. Place this writing in a personal journal that is kept at home, not at work. Sometimes if a person is wrongfully fired, they are immediately escorted out of the premises and are not allowed to return to their work station/office to retrieve their personal property.
3. If you want to send written information concerning the whistleblowing situation to your home computer or to your own attorney, then use your personal email account and not your work email. Your employer may legally be able to read all of your work emails. If you get fired before you can complain internally or to a public body, then you would most likely not be able to raise a claim or assert that you were fired in retaliation for whistleblowing activities.
4. Read your company's employee handbook, especially the sections on whistle blowing, open door policy, and/or business ethics and any specified complaint procedures. Typically your handbook will provide that the company welcomes you to communicate your concerns. The handbook will also identify the person(s) and/or title of the person(s) to whom you are to present your complaint.
5. Meet with an experienced employment law attorney who can provide you with advice as to whether you have a legitimate whistle blowing claim, and guide you through the steps of communicating the complaint either through internal channels or to the appropriate public body. Ideally, you should meet with an attorney before you communicate your complaint. This way, your attorney is in place in case your employer discourages you or retaliates against you for raising your complaint. In that event, your attorney can quickly step forward and if need be litigate on your behalf or pursue alternative dispute resolution means.