Summary of Various Whistleblower Claims

Summary of Whistleblower Claims

At Fish Potter Bolanos, PC, we want to provide potential clients with the information they need to help them assess when it's time to discuss their legal issue with an attorney.

Please take some time to review the various whistleblower laws below and reach out to us as soon as possible if you think you require assistance with your whistleblower claim.

Reach out to Fish Potter Bolanos, PC any time by contacting us online or by calling (630) 364-4061.

Federal Laws

OSH ACT, Section 11(c)

This law prohibits retaliation against individuals who engage in protected activity related to safety or health in the workplace. No private right of action exists; instead, the Secretary of Labor investigates complaints and can file individual enforcement actions in federal court.

  • Who is covered: Private sector employees, U.S. Postal Service employees (but not other public sector employees)
  • Protected activity: Filing a complaint (including internal complaints) or initiating a proceeding under the Act, participating in an official investigation, testifying in any proceeding under or related to the Act, refusing to perform a work assignment that is unlawful.
  • Time Limit: Whistleblower complaint must be filed directly with OSHA within 30 days of the alleged adverse action (tolling of the 30-day period can be justified based on equitable principles or because of significant extenuating circumstances).
  • Source: Whistleblower Complaints Under the Occupational Safety and Health Act, Practical Law Practice Note 8-612-0573

Sarbanes-Oxley Act (SOX), Section 806

This law prohibits retaliation against employees of public companies who engage in protected activity involving disclosures related to mail/wire/bank/securities fraud, violations of SEC rules and regulations, or violations of federal laws related to fraud against

shareholders.

  • Who is covered: Employees (includes present and former workers and applicants), independent contractors under certain circumstances, employees of private contractors and subcontractors that provide services to public companies.
  • Protected activity: Reporting or assisting in reporting corporate wrongdoing (including internal complaints) covered by the statute that the employee reasonably believes has occurred; file/testify/participate/assist in a proceeding related to alleged wrongdoing covered by the statute.
  • Time Limit: whistleblower complaint must be filed with OSHA within 180 days of retaliation.
  • Source: https://www.justia.com/employment/retaliation/sarbanes-oxley-act/; Whistleblower Protections Under Sarbanes-Oxley and the Dodd-Frank Act, Practical Law Practice Note 7-501-7799.

Dodd-Frank, Section 922

This law establishes a whistleblower reward and anti-retaliation protection program for whistleblowers who voluntarily provide original information to the SEC about violations of federal securities laws. Under the bounty provision, the SEC is required to provide eligible whistleblowers with between 10% to 30% of total recovery from a successful enforcement action resulting in monetary sanctions over $1 million. Notices of sanctions exceeding $1 million are posted online so that whistleblowers who believe they are eligible may apply for an award.

  • Who is covered: An individual need not be an employee of the company to submit information about the company; whistleblowers can submit complaints anonymously through an attorney.
  • Anti-Retaliation Provisions: Only extends to persons who report information to SEC (individuals who only report wrongdoing internally are not protected). Individuals can bring claims directly in federal court without having to exhaust administrative remedies. Remedies include reinstatement, double pack pay with interest, costs.
  • Time Limit: 6 years after prohibited retaliation occurred; or 3 years after material facts were known/reasonably should have been known by employee alleging violations (but no later than 10 years after prohibited retaliation occurred).
  • Source: Whistleblower Protections Under Sarbanes-Oxley and the Dodd-Frank Act, Practical Law Practice Note 7-501-7799

Affordable Care Act, Section 1558

added Section 18c to the FLSA to protect employees from retaliation regarding certain protected activities under the ACA. If an employer retaliated against an employee for engaging in any of the protected activities, the employee can file a complaint with OSHA.

  • Who is covered: Private and public sector employees, former employees, job applicants
  • Protected activity: Receiving a tax credit or cost-sharing reduction involving the ACA’s health insurance exchange; reporting potential violations of Title I of the ACA; testifying/assisting/participating in any proceeding about a violation; objecting or refusing to participate in any activity/policy/practice/assigned task that employee reasonably believed was violation of Title I of ACA.
  • Timing: Employees must file a complaint within 180 days of an alleged retaliation (period beings when employee is aware or reasonably should be aware of alleged retaliatory action). Can file a complaint online or by calling OSHA office.
  • Source: Whistleblower Complaints Under the ACA, Practical Law Practice Note 3-524-6825


IRS Reward Program and Taxpayer First Act (TFA)

Section 7623 of the Internal Revenue Code provides for mandatory payment of monetary awards to employees reporting certain information regarding underpayment of taxes or violations of internal revenue laws. TFA, signed into law in 2019, protects employees from retaliation for reporting this information.

  • Whistleblower Award Program: IRS pays money to individuals who provide information used to collect proceeds from taxpayers who underpaid taxes or violated internal revenue laws. Mandatory award of between 15% and 30% of collected proceeds when individual provides original information and other requirements met. Reduced award of up to 10% when less substantial contribution/non-original information.
  • TFA Anti-Retaliation Protections: Protects whistleblowers reporting both internally to employers and externally to IRS. Remedies include reinstatement, double back pay with interest, costs.
  • Protected activity: Providing information or assisting in investigation regarding underpayment of taxes/internal revenue law violations, testifying/participating/assisting in any administrative or judicial action by the IRS involving underpayment of taxes, tax fraud, internal revenue law violations.
  • Timing: Before filing a lawsuit, a whistleblower must file a complaint with the Secretary of Labor within 180 days of the alleged retaliation.
  • Source: Whistleblower Protections Under the IRS Reward Program and Taxpayer First Act (TFA), Practical Law Practice Note w-021-6827

Federal False Claims Act

This law is used to combat fraud against the US government, covers fraudulent claims made against any federal agency, program, contract, or grant.

Under qui tam provision, whistleblowers are permitted to bring a case on behalf of federal government to recover damages on its behalf. Whistleblowers can receive a percentage of the reward recovered in an FCA lawsuit (15-25% if government intervenes, 25-30% of government does not).

The FCA also includes an anti-retaliation provision that prohibits an employer from retaliating against an employee for lawful acts done by the employee in furtherance of an action taken under the FCA.

  • Timing: cases must generally be filed within 6 years of the violation.
  • Source: https://bergermontague.com/federal-false-claims-act/

Whistleblower Protection Act, Section 2303

This law prohibits retaliation against federal employees/former employees/applicants, for disclosing certain types of government wrongdoing. The types of covered wrongdoing include: violation of any law, rule or regulation; gross mismanagement; gross waste of funds; abuse of authority; substantial or specific danger to public health or safety. Employee may disclose information to any person (except where require by law to be kept confidential), no requirement for employee to go through chain of command.

  • Who is covered: Most federal employees (not U.S. Postal Service, employees of government contractors, or employees of intelligence agencies).
  • Procedures: Employee may file a complaint with the Office of Special Counsel (OSC). If OSC finds no wrongdoing or retaliation, employee has to up to 60 days to file an individual right of action appeal before the Merit Systems Protection Board (MSPB). Certain retaliatory actions are also directly appealable to the MSPB.
  • Source: Whistleblower Protections Under the Whistleblower Protection Act, Practical Law Practice Note w-002-8554

Consumer Financial Protection Act

This law protects workers in the consumer financial product and service industries from retaliation for reporting violations of the CFPA or any other laws subject to jurisdiction of the Bureau of Consumer Financial Protection.

  • Who is covered: Any individual performing tasks related to the offering or provision of a consumer financial product or service.
  • Timing: 180 days to file a complaint with OSHA.
  • Source: https://www.osha.gov/sites/default/files/publications/OSHA3720.pdf

ERISA, Section 510

This law protects employees from workplace discrimination or retaliation in connection with exercising their rights under employee benefit plans or ERISA. Section 510 also prohibits retaliation against any person because the person has given information or testified in any inquiry or proceeding relating to ERISA.

  • Protected activity: There is a circuit split as to whether Section 510 applies to unsolicited, internal workplace complaints to management. 7th Circuit endorses the view that this is protected activity. George v. Junior Achievement of Cent. Ind., Inc., 694 F.3d 812, 816-17 (7th Cir. 2012)
  • Federal Transportation Sector Laws

Surface Transportation Assistance Act

Protects truck drivers and other covered employees from retaliation for refusing to violate regulations related to the safety or security of commercial motor vehicles or for reporting violations of those regulations. Timing: 180 days to file a complaint.

Wendell H. Ford Aviation Investment and Reform Act

Protects employees for air carriers and contractors and subcontractors of air carriers from retaliation for, among other things, reporting violations of laws related to aviation safety. Timing: 90 days to file a complaint.

2007 Federal Railroad Safety Act

Protects employees of railroad carriers and their contractors/subcontractors from retaliation for reporting workplace injury or illness, hazardous safety/security condition, refusing to work when confronted with such conditions, reporting violations of federal laws related to railroad safety/security, abuse of public funds appropriated for railroad safety. Timing: 180 days to file a complaint.

National Transit Systems Security Act of 2007

Protects transit employees from retaliation for reporting hazardous safety/security condition, refusing to work when confronted with such conditions, reporting violation of federal laws relating to public transportation agency safety, refusing to violate such laws, reporting abuse of federal grants or other public funds appropriated for public transportation. Timing: 180 days to file a complaint.

Seaman’s Protection Act

Protects seamen from retaliation for reporting violations of maritime safety laws or regulations, or refusing to work when they reasonably believe assigned task would result in serious injury to themselves or public. Timing: 180 days to file a complaint.

International Safe Container Act

Protects employees from retaliation for reporting to Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act. Timing: 60 days to file a complaint.

Federal Consumer Protection Whistleblower Laws

Consumer Product Safety Improvement Act

Protects those who raise concerns within the jurisdiction of the Consumer Product Safety Commission. Covers employees of consumer product manufacturers, importers, distributers, retailers, and private labelers. Excludes tobacco, pesticides, firearms, aircraft, boats, drugs, medical devices and cosmetics.

Timing: 180 days to file a complaint.

Examples:

  • Children’s Gasoline Burn Prevention Act
  • Federal Hazardous Substances Act
  • Flammable Fabrics Act
  • Poison Preventing Packaging Act
  • Refrigerator Safety Act
  • Virginia Graeme Baker Pool and Spa Safety Act

Environmental-Related Laws

Federal Water Pollution Control Act

Protects employees from retaliation for reporting violations of the law related to water pollution. Timing: 30 days to file a complaint.

Clean Air Act

Protects employees from reporting violations of the Act, which provides for the development and enforcement of standards regarding air quality and air pollution. Timing: 30 days to file a complaint.


Comprehensive Environmental Response, Compensation and Liability Act (“Superfund Law” or CERCLA)

Protects employees from retaliation for reporting violations of regulations involving accidents, spills, and other emergency releases of pollutants into the environment. Also protects employees who report violations related to the clean-up of uncontrolled or abandoned hazardous waste sites (“Superfund” sites). Timing: 30 days to file a complaint.

Safe Drinking Water Act

Protects employees from violations for reporting violations of the Act, which requires that all drinking water systems assure that their water is potable as determined by the EPA. Timing: 30 days to file a complaint.

Solid Waste Disposal Act

Protects employees from retaliation for reporting violations of the law that regulates the disposal of solid waste. Timing: 30 days to file a complaint. Also known as the Resource Conservation and Recovery Act.

Toxic Substances Control Act

Protects employees from retaliation for reporting alleged violations relating to industrial chemicals currently produced or imported into the USA. Timing: complaint must be filed with OSHA within 30 days.

Source: https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf

Miscellaneous Laws

Food Safety Modernization Act

Protects employees who work with food production, transport, storage, preparation or sales. Protected when they raise concerns about food safety, or when they refuse to violate standards or serve unsafe food.

Timing: must file complaint to OSHA within 180 days.

Moving Ahead for Progress in the 21st Century

Protects employees of motor vehicle manufacturers, part supplies, or dealerships when they raise concerns about defects or other noncompliance with safety, reporting, and notification requirements.

Timing: must file an initial retaliation claim within 180 days. If case has been pending at DOL for 210 days without a final order, complainant may file civil action in federal court and demand a jury trial. No punitive damages available.

Asbestos Hazard Emergency Response Act

Protects employees from retaliation for reporting violations of the law related to asbestos in public or private non-profit elementary and secondary school systems. Timing: 90 days to file a complaint.

Energy Reorganization Act

Protects certain employees in the nuclear industry from retaliation for reporting violations of the Atomic Energy Act. Covers employees of operators, contractors and subcontractors of nuclear power plants, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act. Timing: 180 days to file a complaint.

Pipeline Safety Improvement Act

Protects employees from retaliation for reporting violations of federal laws related to pipeline safety and security or for refusing to violate such law. Covers employees of private sector, states, municipalities, and individuals owning/operating pipeline facilities, and their contractors/subcontractors. Timing: 180 days to file a complaint.

Covid-19 Related Whistleblower Protections

The COVID-19 Whistleblower Protection Act was introduced in the U.S. House and Senate in February 2021 as H.R. 846. The Act would create strong whistleblower protections for workers who report fraud/abuse/mismanagement of pandemic relief funds.

State & Local Whistleblower Protections

Illinois Whistleblower Act

Protects employees from retaliation for disclosing suspected violations of state or federal law to a government or law enforcement agency, or for refusing to participate in activities that violate state or federal law.

Also prohibits employers from adopting policies that prevent employees from disclosing suspected legal violations to a government or law enforcement agency. Complaints about violations of COVID-19-related laws and regulations would be covered under this Act.

  • Who is covered: Current employees (but not prospective employees)
  • Remedies: Reinstatement, back pay with interest, compensation for any damages sustained, including costs of litigation. No punitive damages available.
  • Source: 740 Ill. Comp. Stat. Ann. 174/1

Illinois False Claims Act (also known as Whistleblower Reward and Protection Act)

Allows whistleblowers to bring suit in the name of the state of IL where a wrongdoer engaged in conduct that defrauded the state or local government of taxpayer dollars.

Violations for which liability may attach under the Illinois FCA include: Knowingly submitting a false claim for payment to IL, knowingly making or using a false record or statement material to a false claim, conspiring to do those actions, creating/using a false record material to an obligation repay IL.

  • Who is covered: Private individuals who know about fraud against IL state government can bring a qui tam case against the offending party on behalf of the State. Whistleblowers can receive financial rewards (15-25% of recovery if State intervenes and 25-30% if State does not intervene). Employees are prohibited from retaliating against whistleblower employees.
  • Timing: Generally, there is a 6 year statute of limitations.
  • Source:The Illinois Whistleblower Reward and Protection Act and Its Qui Tam Provisions, 88 Ill. B.J. 392, 412 (2000)

Anti-Retaliation Protections in other IL statutes:

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing suspected unlawful discrimination or sexual harassment in employment. An employee does not need to prove that unlawful discrimination (or sexual harassment) actually occurred only that she reasonably (and in good faith) believed that unlawful discrimination (or sexual harassment) was taking place. Nor may an employee be discharged in retaliation for making a charge, filing a complaint, testifying, assisting, or participating in a public investigation, proceeding, or hearing under the Illinois Human Rights Act (IHRA).

The IHRA prohibits discrimination in employment on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, handicap, military status, sexual orientation, and unfavorable discharge from military service. In certain cases, discrimination on the basis of arrest record is also prohibited. 775 Ill. Comp. Stat. 5/6-101. Timing: 180 days to make a complaint to IDHR.

Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising any rights under Illinois' Safety Inspection and Education Act, a law concerning occupational safety and health. 820 Ill. Comp. Stat. 220/2.2. Timing: 30 days to file a complaint with IDOL.

Toxic Substances: An employee may not be discharged (or discriminated against) in retaliation for making a claim, file a complaint or action, testifying in a proceeding, or exercising any rights under the Illinois Toxic Substances Disclosure to Employees Act. Under that Act, an employee has the right to know about any toxic substances with which the employee works. 820 Ill. Comp. Stat. 255/14.

Workers' Compensation: An employee may not be discharged (or interfered with) in retaliation for exercising rights and remedies granted to the employee under Illinois' Workers' Compensation Act. 820 Ill. Comp. Stat. 305/4(h).

Source: https://www.workplacefairness.org/whistleblower-retaliation-claim-IL

Chicago COVID-19 Anti-Retaliation Ordinance

Provides protection against retaliation for employees who stay at home to obey public health orders or for other COVID-19 related reasons. Prohibits employers from taking adverse actions against employees who cannot work due to certain COVID-19 related reasons, even if they have exhausted all other leave.

If there is a violation, the city’s Department of Business Affairs and Consumer Protection can bring an action against the employer. The aggrieved employee can also bring a civil action to seek reinstatement and triple damages for lost wages.

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