This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We thought that an article on whistleblowing would be timely given the recent news involving the whistleblower complaint involving Ukraine. A whistleblower is simply an individual who learns of illegal or unethical activity (or waste, fraud and abuse) and reports it.
Most whistleblowers do not end up famous, but they often play a critical role in holding employers and the government accountable for engaging in illegal activities. Too often illegal activities are ignored by an employee for fear of retaliation. Some employees, however, take a stand at great risk to themselves. As a result, many whistleblower laws have developed over the years to protect these individuals.
Whistleblower Laws in the United States and Virginia
The United States has had whistleblower laws in effect since 1863 during the time of President Abraham Lincoln, who wanted to encourage individuals to report rampant fraud against the federal government in response to purchases during the Civil War. As a result, the False Claims Act (FCA) became law and encouraged private citizens to bring lawsuits against individuals and companies who were defrauding the government.
As an incentive, the whistleblower could receive a percentage of whatever the government recovered from the disclosure. The FCA is still in effect today, though numerous other federal and state laws cover different types of whistleblowers.
In 1989, the Whistleblower Protection Act (WPA) was enacted to protect federal employees who disclosed illegal actions by the federal government and waste, fraud and abuse. The WPA sought to protect federal employee whistleblowers who suffered retaliation for reporting these illegal activities. There are numerous other whistleblower laws at the federal and state levels that protect individuals who disclose different types of illegal activities, such as the Clean Air Act, the Sarbanes-Oxley Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act (OSHA).
These are just some of the existing whistleblower laws that can protect individuals that make disclosures. Additionally, many states allow employees, either by statute or common law, the ability to challenge retaliation related to whistleblowing activities.
In Virginia, because the state has not yet enacted general state whistleblower protections for employees, the courts have allowed employees to bring whistleblower claims through common law. These are known as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).
General Test to Qualify for Whistleblower Protection
The importance of being a whistleblower is that certain protections can then come into play after the disclosures are made. Generally, once a disclosure is made, an employer finds out who disclosed the illegal activity and are very unhappy with the employee. This often causes employer retaliation against the whistleblower.
Whistleblower protection laws usually follow the same 3-part test to determine if an employee can prevail on a retaliation claim. In general, this requires:
- That the individual had a good faith belief that their employer was engaging in illegal activities or waste, fraud and abuse and they reported it
- That the individual’s employer knew that the individual made such disclosures
- That the whistleblower suffered retaliation due to the disclosures
Depending on the statute involved, a whistleblower can receive legal protection from retaliation (the most common retaliatory action involves termination from employment), damages, back pay and attorney fees. Each statute is different so individuals should consult with an attorney if they believe that they may need whistleblower protection.
If you need assistance with whistleblower representation or other employment issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
A man walks by trash bins next to the curb (via Trinity Nguyen on Unsplash) The service and staffing challenges plaguing trash collectors throughout Fairfax County have prompted one company…
Sunlight behind a peaked, glass roof at the Vienna Metro station (staff photo by Angela Woolsey) Suspect in Mount Vernon Fatal Shooting Arrested — Fairfax County police arrested Kyjuan Omar…
The Fairfax County Government Center (staff photo by David Taube) With the 2022 elections now in the rearview mirror, five Fairfax County supervisors have already confirmed that they will be…
A special remembrance ceremony is slated for this weekend (via Google Maps) More than 920 military veterans laid to rest at Chestnut Grove Cemetery in Herndon will be honored during…
The Ravel Dance Studio will re-open for fall classes 2020. The school will offer in person and virtual online instruction. With over 5000 sq. ft. to social distance the school has added air ionization filtration systems, ballet barres, acrylic dividers, hands free bathrooms, strict monitoring and more.
The Ravel Dance Studio will produce a Nutcracker Ballet Hollywood style video through the Reston Community CenterStage. REGISTRATION online begins August 17.
Chris Green is one of the DMV’s finest fitness instructors. A Lululemon and South Block ambassador, he is a coach and mentor to so many. He embodies grace, positivity and motivation in ways that no one else can. If we could all learn a thing or two from him, the world would be a much better place. He does so much for others, and does so with a smile on his face 99% of the time.
He recently ruptured his Achilles and has an incredibly long and tough journey ahead. As if COVID hadn’t impacted fitness professionals enough, throw this in the mix and it’s a double, even triple whammy. CG is no longer able to work and do what he loves for the time being because of this and we’d love your support.