Guide

Do I have a whistleblower case?  It’s amazing how many individuals pre-suppose they are a whistleblower but overlook the simple question, which is, am I considered a whistleblower under the law?  Loosely and colloquially used people perceive they are a whistleblower when they reveal anything illegal or unethical a company or individual is doing.  It may surprise individuals to know that the large majority of what people think constitutes blowing the whistle does not qualify for any protections under the law, and the reporting of the conduct may actually cause the individual to endure a hostile work environment up to and including termination or worse.   Let me give a laundry list of what areas trigger whistleblower protections and then contrast it to those areas where there’s no protections at least under Federal Laws.

• Federal False Claims Act

1. Medicare Fraud
2. Medicaid Fraud
3. Defense Contractor Fraud
4. Other Fraud against the Federal Government
5. Kickbacks
   • Anti-Kickback Statute
   • Stark Act
6. Pharmaceutical Fraud & Scams
   • Off-label promotion for products paid with federal funds
   • Improper promotions and kickbacks to prescribe products implicating federal funds

• Opiate promotions paid via Medicare or Medicaid

• State False Claims Act

1. Illinois (Private Insurance Included)
2. California (Private Insurance Included)
3. New York

• State Whistleblower Protections
• SEC Whistleblower
• CFTC Whistleblower
• FIRREA whistleblower
• IRS Whistleblowers

And now before I elaborate on the viable whistleblower topics, here’s what doesn’t qualify as a whistleblower under the law – pretty much everything else! This is what jams many people up.  They automatically assume they are a whistleblower and can obtain vast sums of money for a whistleblower award for their explosive information but in fact their firecracker is a just a dud. For example, knowledge that a company is engaging in a manner that is unethical or internally violates the company code of conduct is not actionable under almost all federal whistleblower statutes, and may not have any protection under state whistleblower protections or even under most states’ employment laws. To tease this out even further, let’s say you’re an employee and the code of conduct at the company has an expansive dress code, but you overhear managers conspiring to discipline and fire individuals who wear Bugatchi shirts and jeans to work under pretextual reasons.  Yes, you’ve learned inside information, but no federal statute will protect the reporting of that information or qualify you for any sort of whistleblower award, and most, if not, state laws will provide very little protection as well.  While that may seem like an extreme example here are some other common fact patterns that simply don’t qualify for federal whistleblower protection. Insurance Fraud is not actionable under the federal statutes unless it implicates Medicare Fraud or Medicaid Fraud.  It’s important to shut down insurance fraud, as insurance scams lead to rising premiums and burden the health care system.  The insurance fraud may be particularly egregious with a medical provider falsely billing the insurance company or inflating the bills.  This is surprising and counter intuitive.  Some states like California and Illinois have state mechanisms to reward whistleblowers for information about insurance fraud, but even in the context of those states, they are complicated statutes, with the Illinois state statute constantly under attack and ironically, the insurance companies don’t even assist sometimes with the prosecution of the cases because the statute does not provide for them to receive compensation from the fraud. In order to sort out what’s actionable under the law and what’s not there may be a very fine line.  Don’t think you can research it out yourself with certainty, especially online, because whistleblower information that was current yesterday, may have expired today. An overarching theme is to consult with a whistleblower law firm, even if it’s not our firm as most, like ours, offer free consultations for most whistleblowers. In preparation for your call with the whistleblower lawyer you should be prepared to answer focused questions about:

• The nature of the fraud
• Who or what is being defrauded
• If it’s not fraud, what you are blowing the whistle on
• How you know the inside information
• How much money is in controversy
• Who else is likely to corroborate your information
• What your expectations are
• How long you’ve known about the situation without reporting it

Don’t be alarmed if you don’t know the answer to all the questions.  It’s important to insert the use of whistleblower counsel early and often to align your mind with what needs to be done to pursue a whistleblower claim. Next up we in the complete guide to blowing the whistle we will discuss:

• Do I have a Whistleblower case?
  • What’s the difference between a qui tam action and a whistleblower lawsuit?
  • What statutes protect me?