Knowing if you have a whistleblower claim is tricky. A whistleblower claim is fairly narrowly defined in the legal sense. While many federal statutes and a couple of Ohio statutes try to protect whistleblowers, each one has a very narrow set of definitions. The First Amendment protects whistleblowers who are public employees but to a surprisingly limited extent. Whatever the employee is blowing the whistle on has to be a matter that doesn't ordinarily fall within the job duties of the employee to report and is also a matter of public concern. There are narrow definitions as to what constitutes a whistleblower.
Generally, a whistleblower is someone who is reporting on some form of serious illegal conduct, or some form of conduct that could cause serious bodily injury, harm, or death to someone in the workplace. That person can be a whistleblower and is then entitled to protections. That's the common theme across these statutes.
Unfortunately, the Ohio whistleblower statute, Revised Code 4113.52, then creates a set of procedures that one has to follow that aren't practical or are difficult to accomplish. By the time the whistleblower comes to learn of these requirements because they contact us, it’s too late; we're not in a position to help them because they've already been fired. They don't qualify as a whistleblower because they didn't do the exact things that were required under the statute.
What are the most common types of whistleblower cases you see?
Among the most common whistleblower cases we see in our practice are First Amendment-retaliation cases where a public employee whose job is not ordinarily to blow the whistle steps forward and reports an issue of significant public concern. That could be reporting on corruption and self-dealing by public officials, reporting sexual harassment, gender or race discrimination, or reporting other types of illegal retaliation. It could be reporting a threat to public safety such as in our Cleveland Hopkins International Airport-whistleblower case, in which our client reported that the airport was not following agreements it had made with the FAA on clearing runways, and having sufficient snowplows to be able to do that. The most common thing we see is in the First Amendment-retaliation context but that mostly applies to public employment.
We also see whistleblower cases under Air 21, which protects people who are blowing the whistle in the aviation industry. There are all kinds of federal statutes regarding reporting safety violations in private or public employment putting workers or the public at risk. We also see situations where whistleblowers are reporting on other types of illegal activity. Usually, it has to be a felony or something that's going to cause severe bodily harm or death.
Sexual-harassment reporting is another big area for whistleblowing. We see that all the time in the private and public sectors.
What is the False Claims Act as it relates to whistleblower cases?
In most False Claims Act cases, the government has the opportunity to pursue or decline the case. But a False Claims Act retaliation claim belongs to the individual. Whistleblowers get to continue to pursue that even if the government declines to pursue the other parts of the case. If you face retaliation you may still be able to get compensation depending on the amount of damages that you have and how strong your case is.
We have succeeded in securing whistleblower-retaliation compensation even when the government has viewed the underlying False Claims Act case as not worth aggressively pursuing.
Am I ever too late to bring a whistleblower claim?
Statutes of limitations place a hard stop on whether you have a whistleblower claim.
There are some statutes where it’s difficult to timely bring a whistleblower claim. Under the Ohio whistleblower statute, Revised Code 4113.52 which only applies to instances of felony misconduct, or risk of serious bodily injury or death, you must pursue a claim within 180 days of the retaliation. There are other statutes, such as federal Title VII employment claims involving race discrimination, sexual harassment, gender discrimination, or religious discrimination where you have 300 days in Ohio to file with a claim with the EEOC; in some states it's only 180 days. Then there are other claims that might have a statute of limitations of 10 days, 30 days, six months, or a year. In Ohio, you have no more than two years on a First Amendment-retaliation claim from the time of the retaliation.
If you're coming to us with only 30 days left before the statute of limitations is over (or even with a 90-day “right-to-sue” letter from the EEOC, we're probably not going to take your case unless it's really, clearly great, without any need for investigation. Most cases require us to invest a lot of time in investigation before we're ready to file and write a complaint we can confidently stand behind. That’s what good, careful, reputable lawyers do. The earlier you seek counsel, the better because that gives successful lawyers the time to investigate the claim properly, give you feedback on whether you've got a good claim, and then maximize its value.
For more information on Whistleblower Claims In Ohio, and elsewhere, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.
