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Book Review

The Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself

by Stephen Martin Kohn

Whistle blowing is NOT for the faint of heart. If you’re even remotely considering blowing the whistle on a company or government organization, before you do anything, you really must read The Whistleblower's Handbook, then take the author's advice and consult a lawyer experienced in whistleblower laws.

There is no comprehensive national whistleblower protection law. Whistleblower laws are a patchwork, piecemeal, confusing maze of state and federal laws and you must know if your particular type of whistleblowing is legally protected. A person going up against a giant corporation or government organization, who doesn’t know what they’re doing, will get chewed up and spit out. Left for dead.

Not for the Faint of Heart

Stephen Martin Kohn is one of the leading whistleblower attorneys in the United States and is the executive director of the National Whistleblower Center. Since 1984 he has successfully represented numerous nationally recognized whistleblowers.

Do not harbor any romantic ideals about the triumph of justice. Winning a whistleblower case is a complicated legal game, more often about who’s got the best lawyers, than who’s morally right.

However, whistleblowing does work and has been proven to be a much more effective method of correcting industry and government abuses than inspections or regulatory agencies.

Since the 2008 finance industry fiasco and the Bernie Madoff Ponzi scheme scandal, new whistleblower laws such as the Dodd-Frank Wall Street Reform and Consumer Protection Act have been passed, and existing whistleblower laws improved and strengthened, making it easier than ever before for whistle blowers to win. You just have to know how and when to file, and with whom, what you can do and what you can’t.

I repeat: Whistleblowing is not for the faint of heart. But if your conscience won’t let you turn a blind eye to wrongdoing that harms the public—either physically or financially, sometimes you simply have to “do the right thing.”

In The Whistleblowers Handbook you’ll learn some whistleblowing history, starting with the Fraud Claims Act (FCA), enacted during the Civil War when Lincoln and his supporters became disgusted with contractors who were gouging the government, “some of whom were selling sawdust as gunpowder and profiting from the terrible costs of the war.”  As explained in the book, the FCA entitles anyone blowing the whistle on government fraud, if they win their case, to a percentage of the money returned to the government.

What Is Protected – What's Not?

You will learn what is protected by whistleblower laws and what's not.

You’d think going to your supervisor first would be the obvious thing to do – right? Not necessarily. You’ll learn whether to trust company hot lines or not, the disparity between the whistleblower laws, and which one is best for your situation.

The author devotes a chapter to whistleblower topics including: IRS fraud, discrimination, national security, airline safety, mandatory arbitration agreements, how to get the maximum amount in damages, when you can file anonymously and many, many more.

He also identifies what you can and cannot do – such as removing documents from work, taping conversations, destroying evidence, use of email messages.

There are handy, well-organized checklists in the back of the book broken down into categories such as: Whistleblower Reward Laws; Federal Protection; State Common Law; Fraud; Proof of Retaliation to mention just a few, making the information easy to find.

Case Histories

The Whistleblower’s Handbook also contains interesting – sometimes maddening and sometimes heartbreaking – case histories illustrating what went wrong what went right.

There are some that will make your blood boil, like the case of Vera English. English was a GE employee responsible for the quality control of radioactive material, whose reports of hazardous practices caused the Nuclear Regulatory Commission to cite GE for numerous serious violations.

GE retaliated by barring English from the lab and gave her 90 days to find another position within the GE facility. When she couldn’t find one, she lost her job. She filed a wrongful discharge claim within 30 days of her termination as required by law and GE was found guilty of illegal retaliation. English was reinstated with full back pay and benefits and awarded compensation for emotional distress, and attorney fees. Fairy tale ending, right?

GE appealed.  Looking for technicalities, they said she had not filed her claim within the 30 day statute of limitations, arguing that the legal termination date was the date upon which she was given 90 days to find a new position, not her last day of work. The court agreed and Vera English lost her job and received absolutely nothing in damages.

So much for fairy tale endings.

Then there’s the case of Jane Turner, an FBI agent with 25 years of service who courageously blew the whistle on FBI big-wigs, claiming they had ignored gross “incompetence and misconduct” in the handling of appalling child abuse cases on Indian reservations.

Turner re-opened a child rape case she claimed a fellow agent had botched, in which the child had been returned to the abuser, and ultimately obtained a confession from the abuser.

Instead of being commended for her work, she was given terrible performance reviews and treated as an outcast for embarrassing the agency.

Turner sued.

Through favorable testimony from two US attorneys whom she had worked with on the child abuse case, she was able to destroy the credibility of the FBI managers and was vindicated by the court.

That’s one of the happy endings.

Easy to Understand: legal lingo explained

The Whistleblower’s Handbook is written in language easy enough for the average reader to follow, and the legal lingo the author uses is well-explained.  You don’t need to be a lawyer to understand it but you’ll be better able to understand your lawyer when you hire one if you decide to blow the whistle. And even if you decide not to blow the whistle, or have no whistle to blow, the case histories are interesting to read and you’ll learn something about the intricacies of the United States legal system and its whistleblower laws.  You never know when you, or someone you know, just might need them. 

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Rule 15 – Conduct Discovery

Don't be fooled: modern civil lawsuits have nothing in common with the courthouse dramas portrayed on television shows such as Law and Order. The case is not won as a result of a dramatic admission during a trial. There are no sobbing confessions, nor are there admissions of guilt. Friends forget, coworkers get scared, and witnesses lie. Jurors can be skeptical, and judges can be cynical. Whistleblowers' motives will be under scrutiny, and their performance will be challenged.

Whistleblowers do not win cases because justice is on their side, and they do not win because of luck. Cases are won and lost on hard evidence, usually obtained through the extraordinary efforts of a whistleblower before he or she is fired or his or her attorneys during the pretrial discovery process.

In other words, simply being right is not enough. Whistleblowers have to prove they are right. Contemporaneous documentation is key. If a report was falsified, where is the original? If a quality assurance standard was not met, where are the test evaluations? If a concern is raised with a supervisor, where is the e-mail documenting these disclosures? Was a log kept? Were incriminating conversations lawfully taped? The hard and often tedious work of collecting evidence, saving documents, and engaging in extensive discovery is the foundation of a good case. The foundation must be strong, and there are no shortcuts.