If you’re thinking about becoming a whistleblower to expose fraud, safety violations, discrimination, or any other unlawful activities, there are some things you need to know. While whistleblowing is legally protected, many people don’t realize certain actions can affect their legal protections and hurt their case.
A strong whistleblower claim depends on more than just proving misconduct. You need to comply with all applicable laws and employer regulations while documenting and collecting evidence.
To protect the strength and integrity of your claim, it’s critical to avoid making these mistakes.
1. Not speaking with a lawyer first
Before you start gathering evidence or talking to others to find support, your first action should be consulting with a whistleblower lawyer. Many people make the mistake of gathering as much evidence as possible before consulting an attorney. Unfortunately, gathering evidence in certain ways can hurt your case. If you don’t speak with an attorney first, you might make mistakes that will render your evidence inadmissible.
It’s tempting to gather all the documents you can possibly find that seem relevant, but accessing files outside of what you’re authorized to access can give your employer grounds to challenge that evidence and possibly have it thrown out.
In some cases, employers can file charges against an employee for obtaining information against company policy. An experienced whistleblower attorney can help you identify what information you can lawfully collect from your employer and advise you on what to do if you’ve already collected something you shouldn’t have.
A lawyer can also help you understand confidentiality requirements in your industry. For example, industries like healthcare, finance, defense, and technology often have laws that require information to be handled in certain ways. If you collect protected information as evidence, you could be in violation of the law.
The most important thing a lawyer will do for you is help you figure out how to bring your information forward. They’ll tell you if it’s better to report the issue internally, to a regulatory body, or take another approach. Getting a lawyer’s input early is the best way to protect your case.
2. Taking too much evidence
You need strong evidence to support your claim, but taking excessive amounts of information can create problems. If you collect every file you can find, you’ll only expose yourself to more risk. It’s better to collect information directly connected to the misconduct you’re exposing and ensure that it’s within your access privileges.
3. Taking evidence after you’ve been fired
One way whistleblowers commonly hurt their case is by taking evidence after being fired. If you wait to collect information until you’ve been terminated, you’re technically breaking the law by accessing those files, and your employer can use that against you. However, some courts have held that policies and confidentiality agreements don’t preempt an employee’s right to preserve evidence. It depends on the state and jurisdiction. That’s why you need to contact an attorney right away.
4. Altering files
All evidence you gather should remain intact and unaltered. Don’t change anything about the information you gather, including file names and metadata. If certain file names don’t make what’s in the file obvious, put it in a folder with a clear description, or list each file name and document what information it contains.
5. Missing critical deadlines
Depending on your situation, you might only have weeks to initiate a complaint. Don’t wait to file your report or at least talk to a lawyer. If you wait too long, you could lose your ability to report the situation.
6. Not filing with the right channel
There’s a good chance your claim will require filing multiple reports in a specific order, starting with an internal report filed through your employer. You might also need to file an administrative report through a specific agency before going further.
7. Recording conversations
While it’s legal in some states to record conversations under certain circumstances, it’s not a universal right. Each state requires consent from a different number of parties, and some states require at least one of those parties to be present. In this case, even if you live in a one-party consent state, you can’t leave a recording device in a room to capture conversations when you’re not there. If you record conversations illegally, it won’t be admissible as evidence, and it could expose you to disciplinary action and legal consequences.
8. Discussing the case publicly
When you’re frustrated, it’s tempting to share what’s going on with others, but speaking publicly can cause problems. Anything you say or post on social media can become evidence, and sharing sensitive information can be a violation of the law.
Avoid these common errors to protect your rights
Filing a successful whistleblower claim requires strong evidence and restraint. Consulting an attorney first is the best way to ensure you follow all applicable laws for the best possible outcome.
This content is provided for informational purposes only and is not a substitute for professional advice. AFP editorial staff were not involved in the creation of this content.
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