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Whistleblower Law: A Practitioner's Guide

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Lisa J. Banks, Jason C. Schwartz


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"As a federal government watchdog, I often work with corporate and government insiders with first-hand knowledge of matters vital to the public interest. Whistleblowers are the first and best line of defense against waste, corruption, and other misconduct by the government and its contractors. This book is simply without equal as a comprehensive, non-biased guide to the current landscape of federal and state whistleblower law."

—Danielle Brian, Executive Director Project on Government Oversight


Over the last two decades, state and federal lawmakers have passed a considerable amount of legislation to incentivize and protect whistleblowers in both the private and public sectors. Whistleblowers are increasingly seen as the best source of information about waste, fraud, and abuse in the public sector, and as helping promote accountability, compliance and safety in the private sector. However, whistleblowing continues to raise significant concerns around privacy, security, and confidentiality.

In this volume, you will access an in-depth, balanced overview of whistleblower law and the many issues facing practitioners today.

Topics include:


  • 1.  Major legislation, including the False Claims Act of 1863, the Sarbanes Oxley Act of 2002, and The Dodd-Frank Act
  • 2.  Whistleblower protections in the areas of consumer and investor affairs, nuclear and environmental law, and transportation
  • 3.  Survey of state laws and the District of Columbia
  • 4.  Whistleblower incentive programs, including those from the SEC, CFTC, and IRS
  • 5.  Unique challenges faced by whistleblowing attorneys and compliance officers
  • 6   Employer considerations, including preventative measures, investigations, disclosures, privilege, and settlements.

This online treatise offers both state-by-state coverage of the various laws for those representing whistleblower and employer risk mitigation advice for companies. Updates are included in an annual subscription.  Also available in eBook and Print (looseleaf) formats. 

#00736; looseleaf, one volume, 654 pages; Published March 2016. ISBN:978-1-58852-398-3.


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Page Count: 654
  • ISBN: 978-1-58852-398-3
  • Pub#/SKU#: 736
  • Pub Date: 03/30/2016
  • Volume(s): 1

Author Image
  • Lisa J. Banks

Lisa J. Banks is a founding partner of Katz, Marshall & Banks, LLP, in Washington, D.C., where she focuses her practice on employment discrimination and whistleblower claims, as well as contractual employment disputes.  Ms. Banks has successfully represented employees and whistleblowers at both the trial court and appellate levels for almost 20 years, and has served as an arbitrator for the American Arbitration Association (AAA), where she has adjudicated numerous employment and contractual disputes.  Ms. Banks has been consistently ranked as one of Washington’s top lawyers by Washingtonian Magazine, Best Lawyers in America, and D.C. Super Lawyers.




Author Image
  • Jason C. Schwartz

Jason C. Schwartz is a litigation and labor and employment partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP and a member of the firm’s Executive Committee.  Schwartz has extensive experience representing defendants in whistleblower litigation under the Sarbanes-Oxley Act, False Claims Act, and other whistleblower protection statutes and in conducting internal investigations of whistleblower allegations.



CHAPTER 1

False Claims Act: Qui Tam and Retaliation Claims
§ 1.01 Introduction

[1] Overview of the False Claims Act
[2] History and Amendments
§ 1.02 False Claims Act Liability and Qui Tam Suits
[1] Elements and Examples of False Claims Act Claims
[2] Statutory Bars to Qui Tam Actions
[3] Filing a Qui Tam Claim—The Litigation Process
[4] Damages and Penalties
[5] Relator’s Share in a Successful Qui Tam
[6] Settlement/Release of Qui Tam Claims
§ 1.03 FCA Retaliation Claims
[1] Prohibited Retaliation and Amendments
[2] Prima Facie Case
[3] Limitations Period for FCA Retaliation Claims and Procedural Issues Related to Filing
[4] Pleading Standard
[5] Remedies
[6] Settlement/Release of Section 3730(h) Claims

CHAPTER 2

Sarbanes-Oxley Act of 2002
§ 2.01 Overview

[1] Whistleblower Provision: Section 806
[2] Dodd-Frank Amendments to SOX
§ 2.02 Covered Employer
[1] Publicly Traded Companies
[2] Consolidated Subsidiaries
[3] Contractors, Subcontractors, and Agents
[4] Individual Liability
§ 2.03 Covered Employee
[1] Classification as Employee or Independent Contractor
[2] Extraterritorial Application of Employee Protections
[3] Enforceability of Pre-Dispute Arbitration Agreements with Respect to Covered Employees
§ 2.04 Prima Facie Case
[1] Protected Activity
[2] Adverse Action
[3] Causation
§ 2.05 Litigation Process
[1] Filing and Investigation of Complaint
[2] Determination and Review
[3] Kick-Out Provision
[4] Review of DOL Final Order by Federal Courts of Appeal
[5] Jury Trial
§ 2.06 Available Remedies
[1] Reinstatement
[2] Front Pay in Lieu of Reinstatement
[3] Back Pay
[4] Attorneys’ Fees
[5] Non-Economic and Compensatory Damages
[6] Punitive Damages

CHAPTER 3

The Dodd-Frank Wall Street Reform and Consumer Protection Act
§ 3.01 Overview

§ 3.02 Amendments to the Sarbanes-Oxley Act of 2002

§ 3.03 Securities and Exchange Commission Whistleblower Program

§ 3.04 Securities and Exchange Commission Anti-Retaliation Provision

[1] Scope of Protection
[2] Prima Facie Case
[3] Procedural Requirements
[4] Available Remedies
§ 3.05 Commodity Futures Trading Commission Whistleblower Program
§ 3.06 Commodity Futures Trading Commission Anti-Retaliation Provision
§ 3.07 Consumer Financial Protection Act Anti-Retaliation Provision
§ 3.08 Amendments to the False Claims Act

CHAPTER 4

Consumer and Investor Whistleblower Statutes
§ 4.01 Overview

§ 4.02 Consumer Product Safety Act and Consumer Product Safety Improvement Act of 2008

[1] CPSIA Anti-Retaliation Provision
[2] CPSIA Anti-Retaliation Provision Procedures
§ 4.03 Patient Protection and Affordable Care Act
[1] ACA Anti-Retaliation Provision
[2] ACA Anti-Retaliation Provision Procedures
§ 4.04 Consumer Financial Protection Act of 2010
[1] CFPA Anti-Retaliation Provision
[2] CFPA Anti-Retaliation Provision Procedures
§ 4.05 FDA Food Safety Modernization Act
[1] FSMA Anti-Retaliation Provision
[2] FSMA Anti-Retaliation Provision Procedures

CHAPTER 5

Nuclear and Environmental Whistleblower Statutes
§ 5.01 OSHA-Administered Nuclear Whistleblower Protections

[1] Overview
[2] Covered Employers and Employees
[3] Burden of Proof
[4] Respondent’s Affirmative Defense
[5] ERA Procedures
[6] NRC Investigation of Whistleblower Complaints
[7] OSHA-Issued Statistics on ERA Complaint Determinations
§ 5.02 OSHA-Administered Environmental Whistleblower Statutes
[1] Overview
[2] Burden of Proof
[3] Procedures
[4] Clean Air Act
[5] Comprehensive Environmental Response, Compensation and Liability Act of 1980
[6] Federal Water Pollution Control Act/Clean Water Act
[7] Safe Drinking Water Act of 1974
[8] Solid Waste Disposal Act
[9] Toxic Substances Control Act
[10] Asbestos Hazard Emergency Response Act of 1986
[11] Section 11(c) of the Occupational Safety and Health Act of 1970

CHAPTER 6

Transportation Industry Whistleblower Protection
§ 6.01 Overview

§ 6.02 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] AIR21 Procedures
§ 6.03 The Federal Railroad Safety Act of 1970 (“FRSA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] FRSA Procedures
§ 6.04 The Surface Transportation Assistance Act of 1982 (“STAA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] STAA Procedures
§ 6.05 The National Transit Systems Security Act of 2007 (“NTSSA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NTSSA Procedures

§ 6.06 The Pipeline Safety Improvement Act of 2002 (“PSIA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The PSIA Procedures
§ 6.07 The Seaman’s Protection Act (“SPA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The SPA Procedures
§ 6.08 The International Safe Container Act (“ISCA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The ISCA Procedures
§ 6.09 The Moving Ahead for Progress in the 21st Century Act (“MAP-21”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] MAP-21 Procedures

CHAPTER 7

Other Federal Whistleblower Protection Statutes
§ 7.01 Overview

§ 7.02 Whistleblower Protection Act of 1989

[1] Overview
[2] Covered Employers and Employees
[3] Protected Disclosures
[4] Covered Personnel Action
[5] WPA Procedures
§ 7.03 Defense Contractor Whistleblower Protection Act
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] Procedures
§ 7.04 Government Contractor and Subcontractor Protections
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NDAA Procedures
§ 7.05 American Recovery and Reinvestment Act of 2009
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] ARRA Procedures

§ 7.06 Additional Whistleblower Protections for Federal Government Employees and Contractors

[1] Overview
[2] FBI Whistleblower Protections
[3] Department of Energy Whistleblower Protections
[4] Intelligence Community Whistleblower Protection Act of 1998
[5] Major Fraud Act of 1988
[6] Other Statutes
§ 7.07 Whistleblower Protections for Military Service Members and Employees
[1] Military Whistleblower Protection Act of 1988
[2] Nonappropriated Fund Instrumentality Employees of the Armed Forces
§ 7.08 Whistleblower Protections in the Financial Sector
[1] Federal Credit Union Act
[2] Financial Institutions Reform, Recovery, and Enforcement Act of 1989
[3] Annunzio-Wylie Anti-Money Laundering Act
§ 7.09 Industry-Specific Whistleblower Protections
[1] Overview
[2] Migrant and Seasonal Agricultural Worker Protection Act
[3] Federal Mine Safety and Health Act of 1977
[4] Surface Mining Control and Reclamation Act of 1977
[5] Emergency Medical Treatment and Active Labor Act
[6] Other Statutes

CHAPTER 8

Survey of State Whistleblower Statutes
§ 8.01 Overview

§ 8.02 Alabama

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.03 Alaska
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.04 Arizona

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.05 Arkansas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.06 California
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.07 Colorado
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.08 Connecticut
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.09 Delaware
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.10 District of Columbia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.11 Florida
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.12 Georgia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.13 Hawaii
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.14 Idaho
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.15 Illinois
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.16 Indiana
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.17 Iowa
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.18 Kansas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.19 Kentucky
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.20 Louisiana
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.21 Maine
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.22 Maryland
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.23 Massachusetts
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.24 Michigan
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.25 Minnesota
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.26 Mississippi

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.27 Missouri
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.28 Montana

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.29 Nebraska
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.30 Nevada

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.31 New Hampshire
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.32 New Jersey

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.33 New Mexico
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.34 New York

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.35 North Carolina
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.36 North Dakota

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.37 Ohio
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.38 Oklahoma

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.39 Oregon
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.40 Pennsylvania

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.41 Rhode Island
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.42 South Carolina

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.43 South Dakota
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.44 Tennessee

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.45 Texas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.46 Utah

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.47 Vermont
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.48 Virginia

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.49 Washington
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.50 West Virginia

[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.51 Wisconsin
[1] Statutory Whistleblower Protections
[2] Wrongful Termination

§ 8.52 Wyoming

[1] Statutory Whistleblower Protections
[2] Wrongful Termination

CHAPTER 9

SEC Whistleblower Incentive Program
§ 9.01 Overview

§ 9.02 Whistleblower Status

[1] Eligible Individual
[2] Voluntariness Requirement
[3] Original Information
[4] Independent Knowledge and Analysis
[5] Procedure for Submitting Information
[6] Confidentiality and Anonymity
§ 9.03 Covered Actions
[1] Successful Enforcement Action
[2] Calculation of Proceeds

§ 9.04 Award

[1] Amount of Award
[2] Procedure for Claiming Award
[3] Preliminary Determination
[4] Reconsideration of Determination
[5] Final Order
§ 9.05 Rules to Support Internal Compliance Programs
§ 9.06 Developments

[1] Agency Interpretations and Actions
[2] Claims and Award Statistics

CHAPTER 10

IRS Whistleblower Incentive Program
§ 10.01 Overview

§ 10.02 Whistleblower Status

[1] Eligible Individual
[2] Voluntariness Requirement
[3] Submitting Specific and Credible Information
[4] Confidentiality and Anonymity
§ 10.03 Covered Administrative or Judicial Action
[1] Successful Enforcement Action
[2] Calculation of Proceeds

§ 10.04 Award

[1] Amount of Award
[2] Procedure for Claiming an Award
[3] Determination Letter
[4] Appeal
[5] Administrative Timeframes
[6] Timing of Payment of Award
§ 10.05 Developments

CHAPTER 11

CFTC Whistleblower Incentive Program
§ 11.01 Overview

§ 11.02 Whistleblower Status

[1] Eligible Individual
[2] Voluntarily Provided
[3] Original Information
[4] Original Source
[5] Independent Knowledge and Analysis
[6] Procedure for Submitting Information
[7] Confidentiality and Anonymity
§ 11.03 Covered Administrative or Judicial Action
§ 11.04 Award

[1] Amount of Award
[2] Procedure for Claiming an Award
[3] Preliminary Determination
[4] Reconsideration of Determination
[5] Final Order
[6] Appeal
[7] Payment of Awards
§ 11.05 Developments

CHAPTER 12

Purloined Documents
§ 12.01 Overview

§ 12.02 Document Acquisition and Dissemination as Protected Activity

§ 12.03 Balancing Test in Title VII and Discrimination Claims

§ 12.04 Evidence Gathering as Protected Activity by Whistleblowers

[1] False Claims Act
[2] Sarbanes-Oxley Act Retaliation
[3] Dodd-Frank Whistleblower Protections
[4] Defend Trade Secrets Act Protections
§ 12.05 Employer Responses to Document Acquisition and Dissemination by Employees
[1] After-Acquired Evidence
[2] Breach of Contract
[3] Breach of Fiduciary Duty
§ 12.06 Retaliatory Counterclaims
§ 12.07 Potential Criminal Liability
§ 12.08 Ethical Issues for Attorneys



CHAPTER 13

Attorneys and Compliance Personnel as Whistleblowers
§ 13.01 Overview

§ 13.02 Ethical Obligations of Attorney/Whistleblowers

§ 13.03 Sarbanes-Oxley Act and the Dodd-Frank Act

[1] Attorney Disclosures
[2] Retaliation
§ 13.04 False Claims Act
§ 13.05 Eligibility for Whistleblower Awards

[1] Attorneys
[2] Compliance Personnel
§ 13.06 Attorneys as Qui Tam Relators
§ 13.07 Responding to a Claim: Employer Defenses

[1] Pretrial and Extrajudicial Measures
[2] Substantive Defenses

CHAPTER 14

Employer Considerations
§ 14.01 Overview

[1] Importance of the Issue
[2] The “Two-Track” Approach
§ 14.02 Compliance Strategies and Preventative Measures
[1] Encouraging Internal Whistleblowing
[2] Effective Complaint Policies and Legal Requirements
[3] Education and Training
§ 14.03 Internal Investigation of the Complaint
[1] The Duty to Investigate
[2] Initiating the Investigation
[3] Issuing a Document Hold Notice
[4] Defining the Scope of the Investigation
[5] Collecting Relevant Documents
[6] Interviewing Witnesses
[7] Oversight of the Investigation
[8] Reporting the Results of the Investigation
§ 14.04 Protecting Privilege
[1] The Extent of Privilege
[2] Challenges to Privilege
[3] Confidentiality Agreements
[4] Limiting Disclosures to Employees During Internal Investigations
§ 14.05 Compelled and Voluntary Disclosure
[1] Mandatory Disclosure Provisions
[2] Agency Leniency Programs
§ 14.06 Interactions with the Whistleblower
[1] Avoiding the Appearance of Retaliation
[2] Disciplining a Whistleblower for Other Misconduct
§ 14.07 Public Relations Considerations 
[1] Pre-Planning
[2] Managing the Response
§ 14.08 Settlements 
[1] Assessing the Risk
[2] Confidentiality of Settlement Agreements
[3] Labor Department Review of Settlement Agreements


INDEX