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Common mistakes in whistleblower cases and how to avoid them

For more than 20 years, we’ve helped our clients avoid common pitfalls in whistleblower retaliation cases. Here are some common mistakes and what you can do to avoid them:

File on time.

Legal claims must be filed within a certain timeframe, known as the statute of limitations. The deadline for filing a whistleblower complaint depends on the law that was violated.  Here is a list of common whistleblower protection laws and the filing deadlines:

  • Whistleblower Protection Act (WPA) (direct MSPB appeal right): 30 days
  • WPA (no direct MSPB appeal right): No statute of limitations to file a complaint with the Office of Special Counsel
  • False Claims Act retaliation: 3 years
  • DC Whistleblower Protection Act: 3 years
  • Virginia Fraud and Abuse Whistle Blower Protection Act: 3 years
  • Maryland State Contractor Employees’ Whistleblower Protection: 1 year
  • Maryland Executive Employees Whistleblower Protection Act: 6 months

Filing deadlines may be different under other whistleblower laws.  If you’re unsure which law applies to you, we can help.

Follow the right procedure.

Another common mistake is failing to follow the procedure for making protected disclosures or filing retaliation claims.

Under the federal WPA, a disclosure is generally only protected if it is made to the Office of Special Counsel (OSC), Office of Inspector General (OIG), Congress, or another employee designated by the agency to receive disclosures.  Also, you may be required to exhaust administrative remedies, depending on the circumstances. For example, under the WPA, you can file an MSPB appeal if your federal employer retaliated against you by removing you, demoting you, or suspending you for more than 14 days.  However, if it was a different type of retaliation, such as a suspension of 14 days or less, or harassment that didn’t result in an adverse action, you must file a complaint with OSC before you can ask for an MSPB hearing.

It’s not just federal whistleblower laws that have these types of requirements.  State laws may also require employees to file an administrative complaint or grievance instead of, or before, going to court. For example, under the Maryland Executive Employees Whistleblower Protection Act, you must file a complaint with the Maryland Secretary of Budget and Management. However, under the DC Whistleblower Protection Act, you can file directly in court.

If you’re filing a qui tam action (i.e., filing on behalf of the government) under the False Claims Act, you must file your complaint under seal. You’re also required to send a special disclosure notice to the U.S. Attorney General and the appropriate U.S. Attorney’s Office. State laws regarding false claims have similar requirements.

Create a papertrail.

Another common mistake whistleblowers make is failing to keep records. Whenever possible, communicate in writing. Instead of hand-delivering a grievance or complaint, send it electronically so that you have proof.

It’s also helpful to take notes at the time that things happen. If you have a phone conversation with the OSC investigator, write down or type up the date, time, whom you talked to, and what you discussed. Contemporaneous records are generally more valuable than after-the-fact recollections.

Also, keep all emails, text messages, and other communications and documents that relate to your case. You have a legal obligation to preserve all evidence. And many times, documents that don’t seem important at the time become key evidence in a case.

Consult an experienced whistleblower attorney.

When in doubt, get legal advice. An experienced whistleblower attorney can determine whether you have a claim, what law was violated, and when you need to file.  A lawyer can provide guidance about what information you need to include in your complaint and can ensure you follow the proper procedure for filing your claim.

Alan Lescht and Associates has successfully represented employees for more than 20 years.  Whether you are thinking about filing a claim or you feel you are being targeted for blowing the whistle, our team of experienced whistleblower attorneys are here to help.  During a consultation, we will evaluate your case, discuss your options, and develop a strategy to assert your rights.  Send us an email or call us at (202) 463-6036 to speak with an experienced employment attorney. Alan Lescht and Associates offers legal services to private sector and state and local government clients in Washington, DC, Maryland, and northern Virginia, and to federal employees around the world.

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Employee Rights Federal Employees Federal MSPB Law OIG Investigation Retaliation Whistleblower Retaliation

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