The federal government has released a new poster that employers have to post to their employees if they are receiving stimulus money. The new poster, however, is missing a few key details whistleblowers should know. For example, if a whistleblower wants to know where to file a complaint, the government’s poster will only point to the generic www.recovery.com website. The poster does not tell employees that formal written complaints need to be filed with the Inspector General for the federal department that funded the employer. It does not tell whistleblowers that if they wait 210 days for the IG’s final determination, they can take their case to federal court and ask for a jury trial. See Section 1553(c)(3) of the ARRA Act (p. 186 of 407). It neglects to inform them that the Act invalidates binding arbitration agreements, and they can sue even if their employer requires arbitration. Section 1553(d) (p. 187).
The poster also does not address two other issues that can be very important to whistleblowers, but are admittedly difficult to explain in a workplace poster. First, all legal claims have time limits. The ARRA Act does not specify a time limit for whistleblowers to file complaints. In similar situations, the Supreme Court has held that claims can be dismissed if they are not filed within the time provided by local state law for filing lawsuits. This time limit can be as short as one year in some states (Kentucky, Louisiana and Tennessee), or as long as six years (North Dakota and Maine). Many states have a two year time limit. If an employee has to wait 210 days for the IG to finish before going to federal court, that might not leave much time for going to court to be sure that a case will be timely. Hopefully, courts will find that the time limit applies to the initial complaint to the Inspector General, and not to the time to file in federal court, but this is a new law and it is too soon to have court decisions on the time limit.
Another issue whistleblowers should consider is who do you call? Since many stimulus abuse issues will involve frauds against the federal and state governments, the whistleblower may have a right to pursue a qui tam case under the False Claims Act (FCA) and recover a share of the government’s recovery. To do this, it would be best to go to an attorney with FCA experience, and training from Taxpayers Against Fraud (TAF). The FCA qui tam process is unusual, and few attorneys can properly advise whistleblowers about how to establish their status as the "original source" and avoid a "public disclosure" that could bar their claim. While a hotline report may be one way to become an original source, and anonymous report could make it hard to show that you were that source. Also, some lawyers may prefer to make a written submission by certified mail rather than trust that a web interface submission or hotline call will be properly documented. Only an experienced lawyer can evaluate all the circumstances to assess what steps would be best in any particular situation. No government poster will tell you that.
