Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

The poster also does not address two other issues that can be very important to whistleblowers, but are admittedly difficult to explain in a workplace poster. First, all legal claims have time limits. The ARRA Act does not specify a time limit for whistleblowers to file complaints. In similar situations, the Supreme Court has held that claims can be dismissed if they are not filed within the time provided by local state law for filing lawsuits.  This time limit can be as short as one year in some states (Kentucky, Louisiana and Tennessee), or as long as six years (North Dakota and Maine). Many states have a two year time limit. If an employee has to wait 210 days for the IG to finish before going to federal court, that might not leave much time for going to court to be sure that a case will be timely. Hopefully, courts will find that the time limit applies to the initial complaint to the Inspector General, and not to the time to file in federal court, but this is a new law and it is too soon to have court decisions on the time limit.

Another issue whistleblowers should consider is who do you call?  Since many stimulus abuse issues will involve frauds against the federal and state governments, the whistleblower may have a right to pursue a qui tam case under the False Claims Act (FCA) and recover a share of the government's recovery. To do this, it would be best to go to an attorney with FCA experience, and training from Taxpayers Against Fraud (TAF).  The FCA qui tam process is unusual, and few attorneys can properly advise whistleblowers about how to establish their status as the "original source" and avoid a "public disclosure" that could bar their claim.  While a hotline report may be one way to become an original source, and anonymous report could make it hard to show that you were that source.  Also, some lawyers may prefer to make a written submission by certified mail rather than trust that a web interface submission or hotline call will be properly documented. Only an experienced lawyer can evaluate all the circumstances to assess what steps would be best in any particular situation.  No government poster will tell you that.

The management-side law firm, Epstein Becker & Green, issued a "Client Advisory" last week to warn employers about their enhanced liability to whistleblowers under the McCaskill Amendment.  Here is what they are telling corporations who receive government contracts under the stimulus package:

Employers receiving covered funds should take proactive steps now to prevent whistleblower claims under ARRA. As part of a comprehensive compliance program, it may be worthwhile to assure appropriate procedures are in place to prevent and detect mismanagement, fraud, waste, situations creating public danger, abuse or unlawful activity concerning covered funds. Broadening existing hotline or other reporting channels and complaint procedures to cover matters under ARRA may be in order.†ARRA also may occasion review and updating of policies and related orientation, training and monitoring programs, with specific regard to employee whistleblower issues that accompany the receipt of covered funds.

 

This is precisely the impact we hope for from enacting strong whistleblower provisions.  There were no such warnings issued after Congress passed billions of dollars in TARP spending.  Only when employers know that their employees are being encouraged to detect and report fraud – and when those employees have effective legal protections and rewards – will employers start the reforms necessary to change their culture. That will save the taxpayers billions of dollars.  

Taxpayers will save even more money if Congress acts promptly to:
1. Make the current ARRA protections permanent and apply them to all taxpayer spending;
2. Extend the whistleblower remedies to all employees – including federal employees; and
3. Fix procedural defects in the current False Claims Act so that all employees are strongly encouraged to expose waste, fraud and corruption in the spending of taxpayer dollars.

Disclosures by employee-insiders (namely, whistleblowers) are the single most important factor in detecting fraud. Stephen M. Kohn, President of the National Whistleblowers Center issued the following statement: “The stimulus whistleblower provision has already begun to have an effect on the internal corporate culture which may significantly reduce fraud and create an environment where employees are encouraged to tell the truth.”