THINKING ABOUT BLOWING THE WHISTLE? UNDERSTAND THIS

Contractors are rightly concerned about whistleblowers calling out suspected or actual bad behavior. Most significant False Claims Act cases come from whistleblowers, often disgruntled employees or competitors.  Life isn’t all rosy for whistleblowers, though, as a recent Federal News Network report highlighted.  Whistleblower lawyer Stephen Kohn pointed stated that while whistleblowers may provide the Department of Justice with significant information on major wrongdoings, the whistleblower, themselves, could also face prosecution, even for a relatively minor offense.  This, obviously, can discourage whistleblowers from coming forward.  Kohn infers that fixing this will be hard since DOJ prosecutors are often evaluated based on their total convictions.  In addition, Justice has yet to implement a law allowing some whistleblowers to remain anonymous.  Not every whistleblower wants to put his or her neck on the line and mandating that a whistleblower’s identity be known can also be a point against calling attention to potential or actual compliance problems.  Another potential issue, though perhaps mainly one for “serial” whistleblowers, is the amount of recovery they can receive from any government settlement.  While False Claims Act whistleblowers can receive 15% of the total money recovered, that’s half of what programs in the financial sector may offer.  DOJ apparently also negotiates as doggedly with whistleblowers as much as they do defendants.  Kohn states that getting the agency to yield even an additional 1-2% can be a protracted battle.  Lastly, while laws exist to protect whistleblowers from retaliation, would-be informants need to remember that the world of government contracting is relatively small.  Blowing the whistle today may mean not being able to find a position in the market tomorrow.  As always, compliance is the best medicine to counteract whistleblowers.  Not providing a reason for a person to become a whistleblower in the first place is the best medicine.