Q: I criticized my employer to another employee in our company’s lunch room, and one of my co-workers called me a whistleblower. Am I?
A: Probably not. Generally, a whistleblower is someone who reveals wrongdoing within or about an organization to someone in a position of authority or to the public. Many whistleblowers learn of an organization’s wrongdoing because they are employees, but whistleblowers can also be consumers, contractors, vendors or any member of the public who has a reason to know about suspected wrongdoing. Federal and Ohio law specifically defines whistleblowing as the reporting of fraud against the government or regarding specific types of suspected violations having to do with securities, tax, financial reporting, Medicare, waste of public funds, suspected felonies, specified crimes, abuse or neglect of residents at a health care facility, discrimination, wage laws and worker’s compensation. Ohio law protects whistleblowers if the whistleblowing is determined to be in the state’s best interest.
Q: How would I make a whistleblower complaint?
A: Follow the instructions given in your employer’s published policies or code of conduct. Those instructions will probably tell you to give your written or verbal concerns to your supervisor or to a human resources or compliance person, and may suggest an alternative to this process if is the suggested methods are not appropriate in the circumstances. If your workplace has no written complaint process, go to the appropriate supervisor or officer with your complaint. Many employers also have an established method so that anonymous complaints can be made and investigated.
Ohio has a specific whistleblower statute that applies to certain employment situations. To receive statutory protection, you must first notify a supervisor or other responsible officer about suspected wrongdoing before you can receive whistleblower protection for reporting to state officials about your employer’s suspected criminal offenses. (Criminal offenses include a co-worker’s criminal activities, suspected felonies and actions likely to cause an imminent risk of physical harm to humans or produce a hazard to the public.) After you report the violation to state officials, your employer has 24 hours to correct the violation and inform you of the correction. This advance notice requirement does not apply if you are reporting criminal violations of Ohio’s laws concerning air pollution, solid and hazardous waste, safe drinking water and water pollution.
If you are making a complaint to the federal government, you should seek help with how your complaint should be made, and to what government agency or department. The federal False Claims Act allows private citizens to bring lawsuits against federal contractors who commit fraud against the government. To bring such a suit, you must have some private knowledge of the fraud and be represented by an attorney. If your suit is successful, it is possible that you may receive a portion (usually about 15 to 25 percent) of any recovered money (“damages”).
Q: What are my rights as a whistleblower?
A: If your complaint is protected by Ohio or federal law, you may not be fired or have other retaliatory actions taken against you because of your whistleblowing activity. If you believe your employer has retaliated against you, you should use all of the same channels to complain. You have the right to bring legal action if the retaliation is not addressed.
Q: What are my responsibilities as a whistleblower?
A: Although you have the right to be protected from retaliation, you cannot take or access data to which you have no rights or disclose secret or confidential information. As the recent cases involving transmission of government documents to the website WikiLeaks illustrate, these are considered independent acts that can be disciplined or prosecuted even if the underlying complaint was based on a reasonable, good-faith belief. Also, your right to be free from retaliation does not protect you from your own performance issues or misconduct in the workplace.
Before whistleblowing, you must base your report of wrongdoing on your reasonable belief, and make your report in good faith—never casually. Your complaint does not have to be proven right, but if you make intentionally false or unfounded complaints, you may face workplace discipline or penalties for reporting false information to the government. You should expect to be questioned during an investigation of your complaint, and you must be able to support it. If you are not complaining anonymously you cannot insist on confidentiality, since your employer or the investigating agency must be free to investigate and take action in response to your complaint.
Q: Where can I get more information about whistleblowing?
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Julie Davis, partner at James E. Arnold & Associates, LPA.