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6 Things Successful Whistleblowers Never Do

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6 Things Successful Whistleblowers Never Do

Are you considering making a whistleblower claim against your employer? If you’ve noticed behavior and actions at your workplace that suggest your employer has submitted false claims to the Federal government or has violated regulations put in place by regulatory agencies like the SEC, it may be time to consider becoming a whistleblower. 

At Hochfelsen & Kani, we specialize in handling whistleblower cases in Orange County and Southern California in general. During that time, we have seen whistleblowers make the same critical mistakes over and over again. In this post, we share our knowledge to help whistleblowers avoid those mistakes.

Deciding to become a whistleblower is no easy task. We can help you make an informed decision and understand the steps in the process. Before you even call us, however, consider these common but critical mistakes that often scuttle otherwise great whistleblower claims.

  1. Calling the company hotline. You’ve seen a number posted around your workplace, giving you a line to call if you suspect wrongdoing. Typically, that number goes to an HR person or a designated ethics person within your own company. You may think your company actually cares and wants to do the right thing and operate with integrity, and you want to give them that opportunity. 

    Unfortunately, in the business world, the opposite is usually true. That hotline you see was set up by your employer to ferret out potential whistleblowers and punish them. Instead of using hotlines to find evidence of employees committing unethical or illegal actions, companies use them to identify whistleblowers. Once an employee makes that call, she is typically fired, demoted, or transferred to a new department where they can’t do any harm to the organization. Once you’ve been neutralized, the company is now free to hide evidence or do any number of other things to conceal their wrongdoing.

    Should you call the hotline? Talk to us first (714-907-0697) before you call a hotline or complain to your boss.

  2. Reporting to the authorities without following the appropriate process laid out by the False Claims Act, SEC Whistleblower Program or California whistleblower laws. If your only goal in reporting fraudulent behavior is to remain anonymous, then reporting directly to the government might accomplish your goal. But chances are, it won’t even make a ripple. This is because government hotlines are overwhelmed. 

    For example, the government’s Medicare fraud hotline receives tens of thousands of whistleblower complaints annually. Unfortunately, they only have the staff to investigate a tiny percentage. So, while you may feel good about having done your part, you may not have accomplished anything at all. 

    In order to force change, it takes the efforts of a qualified, dedicated attorney to make sure the claim is noticed by the right people. By filing a whistleblower claim under the False Claims Act, your complaint automatically goes to the top of the pile.

    Ending fraudulent behavior is always the guiding motivation behind whistleblowers. We all want to root out corruption and make our country stronger. But there are risks. That is why Congress and many states passed laws allowing whistleblowers to receive cash rewards. 

    There is only one way to receive a reward; you must follow the protocols of the various programs you’re reporting under, whether it be the federal or California False Claims Act, the SEC whistleblower program, or the IRS programs. If you don’t dot your i’s and cross your t’s and file the appropriate paperwork, you won’t get a reward. 

    Tragically, we hear from whistleblowers who walk into our Newport Beach office saying they reported their employer anonymously two or three years ago and they just read in the paper that the Feds cracked down. They call us wanting their reward for reporting. Sadly, they don’t get one because they didn’t follow the steps. 

    These are employees who thought they did the right thing, and they had an expectation of a reward. It’s simply not the way it works. By the time you’ve read it in the newspaper or seen it on TV, it’s too late.

  3. Not keeping a written record. Many Orange County area businesses are great places to work. Unfortunately, Southern California does have some bad apples. If you have been working at one of these bad businesses or investment firms for many years, chances are you have been exposed to a lot. 

    Unless you have written it down, it’s hard to later recall dates, times and names. You didn’t think you needed a journal. One day you reach your limit and you tell your employer that you believe that what they are doing, or what they’re asking you to do, is wrong. 

    Minutes later you’re in the parking lot holding a cardboard box full of your belongings, but that box contains no evidence of the fraud you’ve watched for years. It’s too late now to go back and find memos or search your work computer for proof of the wrongdoing. 

    We usually see potential whistleblowers after they have faced retaliation and been fired or after they had enough and quit. By then it’s much more difficult to build a winning case. Whatever access to documents they had is now lost. 

    If you suspect wrongdoing at your place of employment, keep a diary. Keep printed files (like fraudulent Medicare claims), including printouts of emails. 

    Before you begin making hard-copy records or sending documents to your home email address, however, you need to know the risks of doing so in today’s modern information technology/security landscape. Through your company’s IT department, your employer has many capabilities to protect itself and prevent you from getting these records. Here are the important things you need to know:

    Do not keep these records at work or on a company device! Your employer likely has the capability to remotely erase the files on your work laptop. When you see fraud, be smart in how you document it. 

    Do not send large “document drops” to the printer or your personal email. Many companies today have IT alarms that are triggered if an employee sends a lot of documents to a printer or a personal email address. These alarms are designed to detect external hacking attempts, but they just might alert your employer that you are gathering a written record of their wrongdoing. 

    The bottom line is, don’t collect all your evidence at once. Do it in small chunks over a long period of time, where it will go unnoticed and you can conceal the fact that you are bringing files home to store. 

    One other tip, don’t email or call us from work or on a work device. The law says there is a greatly reduced expectation of privacy while at work or while using a work device.

  4. Telling people. Something else that can kill your claim is telling people, especially coworkers. In a whistleblower claim, it’s important for you to know that the first person to file is the person who gets the reward. 

    There is no reward sharing if two employees at a firm report the same fraudulent behavior. So you confide in your best friend at work that you believe something your company did is a violation of the False Claims act, just to get it off your chest. Your coworker may not have even known about the fraudulent activity before you told them, but now they can go report it. If they do it before you, they get the reward. 

    In addition to this, every person who has been around the block a few times knows that there’s no such thing as a secret. They have a funny tendency to “go viral.” You told your trusted friend in the office, who told their trusted friend, and by the end of the day, your boss knows you’re contemplating being a whistleblower. Now he has the jump on you, and he can start destroying evidence and talking to HR to invent reasons that your work performance warrants letting you go.  

    There’s one more critical reason you should never tell anyone that you’ve filed a whistleblower claim. Once you have filed a claim, it is illegal for you to discuss it; doing so can put you in legal jeopardy personally. 

    Whistleblower cases are kept “under seal” to give the government the time and space it needs to investigate the fraud in secret. If you discuss it with any person, you are “breaking the seal;” an illegal action that can expose you to fines or, in the event the government prevails in the case, your reward can be cut because you imperiled the quality or depth of the investigation by telling a friend about it five years prior to the final judgment. 

    In a whistleblower case, it is critical that you let the government do its job in secret.

  5. Picking the wrong attorney. Choosing an attorney who does not have in-depth expertise in prosecuting whistleblower cases can be devastating. In addition to having successfully tried whistleblower cases in the past, the law firm needs to have access to a deep well of industry knowledge in your particular industry. 

    Say you work in the pharmaceutical industry. Does a lawyer who practices employment law, but sometimes takes on a whistleblower case, stand a chance of understanding the nuances of your workplace and the legal landscape that governs it? Probably not. 

    When you’re looking for a whistleblower law firm, consider their experience. Are they strictly a personal injury lawyers that sometimes handles whistleblower cases? If so, move on. 

    Many attorneys typically think of whistleblower cases as the ticket to big bucks, but they may only see one of these cases during their whole career. You can’t afford to have your case be their chance to dip a toe in this water. At Hochfelsen & Kani we have a stable of cross-disciplinary industry experts who we can call upon at any time to lend us their expertise on virtually any whistleblower-related topic. 

    When choosing an attorney, ask what access they have to industry experts. To be a whistleblower attorney, you need to know more than just the law; you need to know the underlying law that governs each industry, whether that be pharmaceutical, medical, defense, or financial.

    Only 700 whistleblower cases are filed every year nationwide in the United States. And out of those 700 or so, the government only intervenes in about 20% of the cases submitted. When the government doesn’t intervene, your whistleblower lawyer may be asked to prosecute. Unfortunately, if you have an inexperienced attorney, chances are that they will simply walk away if the government declines.

    It’s one thing for the government to investigate and determine there is no case. But what happens if the government declines because it is simply too busy? Is your personal injury or employment lawyer ready for the fight of his or her life and in an unfamiliar area of law?

    If you go with a lawyer who doesn’t have a depth and breadth of experience in whistleblower cases, it’s unlikely that your case will become one of the 20% of cases the government accepts, even if it has merit. This is the difference that an experienced whistleblower firm makes. It’s also important to have experienced whistleblower lawyers ready to prosecute if the government declines.

    It’s also important to have a lawyer that understands the bureaucracies involved in whistleblower cases. When the case involves a large hospital chain, defense contractor or pharmaceutical company, chances are the cases can be filed in dozens of different courts around the country. We find many inexperienced whistleblower lawyers will file the case in their local court because it is convenient. Sadly, that is a big mistake.

    If your Medi-Cal fraud whistleblower case involves a small clinic in Anaheim, you only have one place where the case can be filed. But what if the whistleblower case involves a big pharmaceutical company in Irvine? Chances are that case can be filed anywhere in the country, and the best place to file it might be New York, Washington D.C. or in Maryland where the FDA is located. At Hochfelsen & Kani, we have strong relationships nationwide and know the best place to file is sometimes in a city far away.

    We take the time to speak with prosecutors and find who is working on a similar case or is ready to aggressively pursue your claims.

    Who you hire as a lawyer has a huge influence on whether your case will be successful or not.

  6. Keeping you safe. A lot of whistleblowers may not know the rules about documentary evidence and trade secrets, but if you think about it for a bit, you probably realize that your employer has set up policies to safeguard the company. 

    Does your company handbook have a clause prohibiting you from taking and sharing confidential company materials? Are you working in the healthcare field where patient records are protected by HIPAA? How do these rules and policies affect your case, legally speaking? 

    As soon as you suspect wrongdoing, contact a whistleblower lawyer immediately; one that has years of specialist whistleblower experience. At Hochfelsen & Kani, we will help you navigate company policies and laws. 

    While companies commonly prohibit the taking of documents in their policies and employment contracts, a whistleblower attorney knows that the government’s position on the matter is that documents that show corporate wrongdoing are evidence of a crime that can lawfully be taken. 

    However, you cannot simply take a box of files expecting that everything will be ok because it contains evidence of a crime. For example, if you take the wrong documents, you could be sued by your employer for things like stealing and sharing trade secrets and intellectual property, which is a crime, even if it was done accidentally. 

    Complicating the matter further is that each state has its own laws governing this, in addition to federal laws. (Once again, this is why you should always a seek an experienced whistleblower attorney, one who isn’t “moonlighting” as a whistleblower lawyer hoping to get a big score.)

    The Orange County / Southern California whistleblower lawyers at Hochfelsen & Kani know how to steer their clients away from trouble. 

    Another common problem for whistleblowers is retaliation. If you are still working at the company when you blow the whistle, you may face retaliation. It’s illegal but happens.

    Congress, California and many other states have passed strong whistleblower anti-retaliation protections. Our whistleblower lawyers are looking not only to end the fraud and help you receive a reward, but we are also focused on protecting you.

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David Kani

David Kani is a Newport Beach, California based business lawyer with a focus on cannabis companies, their investors, employees and cannabis-related litigation.
To connect with David: [hidden email] or 714-907-0697.

To learn more about David: davidkani.com
To learn more about David's book Pot Inc.: suttonhart.com
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David Kani & Steve Hochfelsen are represented by Elite Lawyer Management, managing agents for America's best attorneys.
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