In our experience, about half of our whistleblower cases started life as an employment-law claim. Typically, the client is distressed by dishonesty in the workplace and reports it to a superior. Contrary to expectations, the “good guy” is fired. The firing may be immediate or it may be a “constructive” termination – i.e., the imposition of a performance improvement plan; higher sales targets; less responsibility; or, very often, management takes a belated but acute interest in someone’s expenses from years ago (“marinating” as it is known at one large pharmaceutical company).
Either way, the whistleblower finds himself or herself out of a job. Instead of having a problem with dishonesty at work, the concerned employee now has a bigger, more immediate problem: unemployment. So, the employee seeks advice from an employment lawyer. The problem is that if all you have is a hammer, you only see nails. In particular, the employment lawyer sees a number of employment-law claims: breach of contract; breach of an implied employment term; discrimination; wrongful termination in violation of public policy. An employment-law case is filed. The employment lawyer is not necessarily wrong, these may all be real and good claims, but they often are a sideshow. Both the client and the lawyer have overlooked the fraud that caused the problem in the first place. This is “the Big Picture” problem.
Why is it a problem? Because, even if you “win” your employment-law case, you miss out on the much bigger claim under the False Claims Act and/or other whistleblower laws. You also miss the opportunity to do something for the public good. And, finally, you miss the chance to hold the company responsible for its unlawful conduct.
Sometimes the problem can be undone. For example, where the employment-law claims are filed in an arbitration that can be withdrawn, or filed before a discrimination tribunal, where it can be dropped. But sometimes it is simply too late – the allegations may have already been aired in court or leaked to a newspaper; or, as often occurs, the client has signed a release that effectively bars a False Claims Act claim. If you have been fired or sidelined at work, think twice. You may possess information of far, far greater value than you could possibly know.