Whisteblowers do not have it easy. Think about it – if you were forced to blow the whistle certain that you would lose your job, would you do it? Probably not, right? That’s because there is far too much at stake for those of us who have families, mortgages, etc., to take on the risks associated with whistleblowing. When whistleblowers call me for a free legal screening, it doesn’t surprise me if they tell me they don’t want to make waves. What’s shocking to me is the frequency with which employees are confronted with their employer’s unlawful decisions, even if its only to decide not to get involved. Let’s face it, most of us – professionals over the age of 40, that is – have been made aware of a former employer’s intent to break the law (not happening here at SGB, rest assured). Most employees chose to take the path of least resistance by avoiding any personal involvement in workplace fraud, including the messy business of reporting it. There is nothing wrong with this approach; whistleblowers are particular vulnerable to retaliation, reputation harm, and intentional acts of sabotage against them. However, for those out there who have been asked by their employers to participate in unlawful conduct, the possibility of blowing the whistle is not a matter of discretion. Employees who are asked to participate in fraud are exposing themselves to civil and criminal liability as accomplices in a larger fraud; for this reason, they must blow the whistle or resign. This is why strong whistleblower laws are essential protection. Without them, our citizen-employees have no incentive at all to report workplace misconduct until very late in the course of a conspiracy. Without protection from retaliation, the incentives to look the other way, or possibly even agree to participate in unlawful conduct, are powerful and strong.
Sadly, New York State and New York City have extremely narrow anti-retaliation statutes for whistleblowers. The only whistleblowing protected by the law involves retaliation for reporting large-scale public health problems. Remarkably, New York City, the financial capital of the world, has no state or municipal statute which protects against retaliation for blowing the whistle on financial industry fraud (federal law does, but only for certain types of fraud).
If you are confronted with the difficult decision of whether or not to blow the whistle, there are a number of ways to protect yourself for the short term while you are weighing you decision. I recommend that you seek a legal consultation and avoid going it alone; negotiating your moves after blowing the whistle is like tiptoeing through a minefield. If you live in New York or New York City, a skilled and aggressive lawyer is particularly important because a legal hook – i.e., a protective statute – may be hard to come by. You will need a creative and diligent lawyer to find an argument for you.
If you work in New Jersey, or if you live in New Jersey and work from home, the news is much better. New Jersey’s whistleblower law – the Conscientious Employee Protection Act, commonly known as CEPA, is among the strongest whistleblower laws in the country. There is very little employer misconduct which it does not reach, and the damages and penalties are very serious for violations. My firm handles cases in New Jersey, including CEPA matters. I have found that employers are truly terrified of this statute, which is a good thing. Whistleblowers are a national resource – they save the country millions in fraud-related loss, including millions in lost tax revenue – either through forced remediation or loss-recovery (through Qui Tam actions against the government).
So here is my parting shot for whistleblowers out there – if you live in New Jersey, call a lawyer and sue your employer under CEPA. Make them pay for putting you and your family in financial jeopardy by foisting the consequences of their illegal behavior on you. Let them know what you think about the unspeakable cowardice of corporate fraud; how every historic act of corporate fraud has exposed, at its center, a selfish, charismatic and soulless person willing to shift responsibility for illegal behavior to others. If you live in New York, call a lawyer…and then move to New Jersey.
