Concepts and Procedures in Whistleblower Law

By Stephen M. Kohn | Go to book overview

Chapter 9
Damages, Remedies,
and Attorney Fees

The precise amount of damages available to a prevailing employee whistleblower is determined by the specific law relied upon in the underlying claim. That said, there are common reoccurring factual themes and applicable legal rules that both impact and determine how a case should be structured.1

The most common relief available under almost all whistleblower laws is a "make whole remedy" in which an employee is entitled to injunctive and monetary compensation with the goal of being made "whole." This generally includes reinstatement, back pay, and a restoration of benefits. A number of federal and state statutes, and most state common law remedies, also allow successful employees to obtain the full array of damage typically available in a tort claim,2 as well as compensatory and punitive damages.3 Attorney fees are available only when awardable under a statute.

Potential damages are an important consideration when determining which law to utilize to vindicate an employee&s rights. For example, at first blush, a common law whistleblower tort action may appear to be the best remedy. However, the risk of low jury verdicts is substantial. On the other hand, a federal statutory remedy with legislatively mandated back pay, reinstatement, and attorney fees, can reach a valuation far in excess of even a multimillion-dollar jury awarded verdict. In addition, a statutory attorney fee award can both insure that counsel obtain a reasonable fee, regardless of the size of a final judgment, and insure that a whistleblower's award is not unduly burdened by liability for a fee.

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