Blowing the Whistle: the Ins and Outs of
Anonymous Whistleblowers by: Atara Twersky, Esq.
Maybe you have worked at a big company and were privy to information that made you realize that something wasn’t right? Perhaps you have been a long time employee somewhere; but suddenly you are thrust into the middle of a situation that feels wrong. Doing the right thing isn’t always easy but often once you take the initial steps toward breaking your silence, other avenues begin to open. Being an anonymous whistleblower may seem daunting and may even feel disloyal but there are reasons to do this and if done correctly, the law will ultimately protect you.
The Definition of an Anonymous Whistleblower?
According to the National Whistleblower Center, a whistleblower is an individual who reports fraud, abuse, corruption, or dangers to public health and safety to someone who is in the position to correct and rectify the reported wrongdoing. Typically, a whistleblower works inside the organization where the alleged wrongdoing is taking place. However, this requirement of being an “insider” of the company, agency, or organization is not essential to being a whistleblower.
What Is An Anonymous Whistleblower?
The purpose of acting as a whistleblower is to disclose information about hidden and unknown wrongdoings. Most often, though not always, whistleblowers are anonymous whistleblowers at least in the beginning of their reveal.
Because whistleblowers are crucial in ensuring ethical, honest, and safe activity among agencies and so forth, there are dozens of laws in place at federal, state, and local levels to protect and reward whistleblowers for their efforts. However, it is first important to understand that those who want to receive the guarantees of these laws cannot rely on a simple definition: Potential whistleblowers must abide by definitions and procedures in the laws under which they are hoping to obtain their status as a whistleblower.
A brief history of whistleblowing in the United States
Although United States civic activist Ralph Nader is understood to have coined the phrase “whistleblower” in the 1970s, the origins of the word dates back to the first half of the 19th century. The word itself is linked to the use of a whistle to alert the public of a negative situation. Think of the times that you have heard a whistle being blown; perhaps by a referee during a sports game when rules are being broken, or by a school traffic monitor as he/she attempts to ensure safety etc. In light of those specific examples, the phrase attached itself to law enforcement officials in the 19th century as they used whistles to alert the public or other officers of a potential criminal situation. Likewise, sports referees were also called whistle blowers. Eventually, the word “whistleblower” began to be used by journalists to describe people who exposed wrongdoings, like Ralph Nader. Nader was known for “blowing the whistle on” and leading protests against the Federal Trade Commission that lead to the agency’s overhaul and reform.
The United States government has historically made protecting whistleblowers a priority. Seven months after the signing of the Declaration of Independence, the Continental Congress passed what Allison Stanger, author of Whistleblowers: Honesty in America from Washington to Trump, called the “world’s first whistleblower protection law.” Confidential letters exposed by Benjamin Franklin proved that the governor of Massachusetts misled Parliament to promote a military buildup in the New World. As a result of this anonymous whistleblower and the tips provided, the governor was discharged and exiled.
Fast-forward to more modern times: in 2014, the United States Supreme Court issued a landmark whistleblower decision in Lane v. Franks, 573 U.S. 228. The court held that truthful testimony before a Grand Jury is protected speech under the First Amendment of the Constitution, recognizing the importance of protecting speech when public corruption is at issue and acknowledging that cases involving corruption often require testimony from government employees. Id. The Court also held that a failure to protect whistleblowers from retaliation would put public employees who witness corruption in a difficult position: they become torn between the obligation to truthfully testify and the personal desire to avoid being fired. Id.
To this day, (anonymous) whistleblowers and protective laws regarding these individuals remain a topic of utmost importance in terms of uncovering fraud and corruption.
So…What Purpose does Whistleblowing Serve?
Whistleblowers are often associated with terms such as “snitches” or “tattletales,” but these associations are far from the truth. Whistleblowers serve an important role in society in uprooting fraud, corruption, and improper behaviors. Many people “blow the whistle” each year on issues ranging from illegal trade to corporate fraud and everything in between. In fact, the vast majority (42.4%) of corporate fraud is detected through tips from anonymous whistleblowers, showing that these tips have been more effective in stopping unfair and illegal practices in the corporate setting than management review, audits, surveillance, law enforcement, and self-confessions. Whistleblower tips are important because they can result in charges against wrongdoers and create changes in policy. This is precisely why whistleblowers are offered specific protections under the law.
Laws to protect and reward
Federal and state governments provide financial incentives and protections to whistleblowers who correctly report wrongdoing to regulatory agencies and aid in the prosecution of the alleged wrongdoing. Common federal statutes that encourage whistleblowers to report alleged misconduct and wrongdoing include the following:
The False Claims Act (FCA):
Provides a financial incentive to anyone who reports a fraud victimizing the government.
Provides a financial incentive to anyone with independent knowledge of violations of securities and commodities laws.
Provides protections for whistleblowers who expose accounting fraud at public companies.
Securities Exchange Act (SEC):
May provide a financial reward to individuals who provide information about insider trading.
Whistleblowers in action
No discussion of whistleblowers would be complete without a reference to the famous movie, “All the President’s Men,” which details the story of the Watergate scandal and the secret informant and anonymous whistleblower ““Deep Throat” who helped provide inside information uncovering misdeeds of President Nixon that led to his resignation. Tips from Deep Throat were shared with young journalists, Bob Woodward and Carl Bernstein, who were reporters for The Washington Post. In 2005, 31 years after Nixon’s resignation and 11 years after Nixon’s death, Deep Throat’s identity finally became known: Deep Throat was Mark Felt, a former Federal Bureau of Investigation (FBI) Associate Director. Without the tips from this anonymous whistleblower, the congressional activities and scandals would have likely gone undisclosed.
Edward Snowden has been called a traitor by some and a whistleblower by others. Snowden is a former computer intelligence consultant who, in 2013 when he was a Central Intelligence Agency (CIA) employee, leaked highly classified information from the National Security Agency (NSA). The disclosures revealed global surveillance programs and began discussions about national security and individual privacies. Snowden refused to be an anonymous whistleblower and instead made his identity public almost from the outset of his leak. He refused to hide as he always believed he had done nothing wrong.
Whistleblowers have also uncovered wrongdoings in the pharmaceutical field. In 2009, former employees of Eli Lilly, a drug and pharmaceutical company, brought an individual suit against Eli Lilly for marketing its anti-psychotic drug Zyprexa for uses that were not approved by the U.S. Food and Drug Administration. Each of the four former employees discovered discrepancies and unethical doings in the company. The company was marketing Zyprexa for an unapproved use against dementia in the elderly, sleep disorders, and more. When charges were brought against the company by attorneys, Eli Lilly admitted to its illegal practices and settled a $1.4 billion lawsuit with the government. As a reward, the four whistleblowers shared in 18 percent or $78 million dollars of the federal government’s part of the civil settlement.
Recent cases show the continued support that whistleblowers receive from the government. In 2018, the Commodities and Futures Trading Commission awarded $45 million, a new high record, to a single anonymous whistleblower for his assistance in investigating the widespread illegal manipulation of the ISDAFIX: an important price-setting mechanism used in the private derivatives market. And the list goes on.
Olivia Troye is also an example of a modern-day whistleblower on federal affairs. She served a Vice-President Mike Pence’s adviser for homeland security until July of 2020. As Pence’s top aide on the coronavirus task force, she was able to first-hand witness the Administration’s response to crisis. From her insider experience, she was able to testify to how the situation was handled and viewed by those in office. For a more detailed perspective in Olivia Troye’s own words, listen to my podcast episode with Olivia here.
I Am An Anonymous Whistleblower- When Am I entitled To Whistleblower Compensation?
Before you can draw a full conclusion and answer this question, it is important to seek legal advice to go over the facts of your case and consider potential solutions. AF&T assists whistleblowers as they report claims and helps them to obtain the financial rewards and job protection they deserve. If you would like to speak confidentially to one of our attorneys to report wrongdoing, or to get more information about protections and potential rewards for whistleblowers who expose fraud, please contact Atara Hirsch Twersky at Ahirsch@aftlaw.com.
About Atara Twersky
Atara Twersky, is of counsel at AF&T. Atara is also the bestselling author of the children’s book series, Curlee Girlee, inspired by her own young curly haired daughter and written for all curly girls in an effort to ensure they love themselves and their hair exactly as it is, understanding that their hair is part of a greater legacy they share with those who came before them. You can find out more about Atara here. Listen to other podcast episodes Pension Trends Plus with Atara Twersky here or wherever you listen to your favorite podcasts!