Archive for February, 2019

The Irish Paradox: A Tale of Two Whistleblower Laws

Wednesday, February 13th, 2019

 

What Happened in Ireland

On July 15, 2014, Ireland’s Protected Disclosures Act (PDA) came into effect. The PDA established whistleblower protections for both the public and private sectors for the first time in modern Irish legislative history.

The Background

The Republic of Ireland has less than 5 million people. It is roughly the size of West Virginia. It is a beautiful country with miles of rolling emerald green pastures, sheep, and cattle. Conversely, due to favorable tax treatment, it is home to some of the largest American companies in the world. Johnson & Johnson, Roche, Pfizer, Novartis, Merck Sharp & Dohme, Amgen, Sanofi Waterford, AbbVie, GlaxoSmithKline, Bayer, Eli Lilly and Company, Gilead Sciences, Bristol-Myers Squibb, Allergan, AstraZeneca, Abbott Laboratories, Novo Nordisk, Biogen, Shire Pharmaceuticals, Stryker Corporation, Regeneron Pharmaceuticals, Teva Pharmaceuticals, Baxter International, and Alexion Pharmaceuticals all call the Republic of Ireland home.

The Motivation

Over the past decade, American companies have been flocking to Ireland to take advantage of Ireland’s extremely favorable tax laws. This brings Ireland in contact with behemoth American companies and large American work forces. However, all is not idyllic in the Irish countryside for businesses that may not be compliant with the law. Accordingly, employees of companies based in Ireland have the option to blow the whistle under the United States’ False Claims Act (FCA) or Ireland’s Protected Disclosures Act (PDA). Few countries have this option.

Who Can Be A Whistleblower In the Republic of Ireland?

Under the PDA, a whistleblower is defined as a worker who makes a protected disclosure in the public interest to the appropriate party. A worker may be a present or former employee, trainee, or independent contractor. A disclosure is considered protected if it concerns a criminal offense, breach of a legal obligation, miscarriage of justice, misuse of public funds or mismanaged acts by a public body, danger to public health and safety, damage to the environment, or the concealment of information regarding any of the previous actions. The worker must reasonably believe that their employer is committing a wrongdoing to be afforded protection under the PDA.

What Protections Can A Whistleblower Receive?

The whistleblower receives the protection of anonymity as well as the protection against adverse employment actions and unfair dismissal under the PDA. The worker may commence a civil action for suffering a detriment or unfair dismissal under the Unfair Dismissals Act of 1977. The whistleblower also receives immunity from civil liability for blowing the whistle, except for defamation actions under the Defamation Act of 2009. The worker may be liable for the unlawful disclosure of a trade secret pursuant to the European Union’s Protection of Trade Secrets Regulations unless the worker can prove that the disclosure was made to protect the general public’s interest. Of note, the PDA does not set forth a monetary award or compensation of attorney fees for blowing the whistle. The American Federal False Claims Act has all these protections and many more.

How One Blows The Whistle In Ireland

Under the PDA, a disclosure will only be considered protected if it is made to the whistleblower’s employer, a prescribed person set forth in the PDA, or a legal adviser. Of note, if the disclosure is made to a party other than the worker’s employer, the whistleblower must believe that the allegation of wrongdoing contained in the disclosure is substantially true or suffer the consequences.

The Take Away

With the enormous presence of companies in the Republic of Ireland, it is surprising that Ireland didn’t model its whistleblower program after the American False Claims Act (FCA). The FCA does not require a disclosure be in the public interest, nor does it require the whistleblower to disclose the wrongdoing to its employer before filing a claim with the Department of Justice. Further, all FCA complaints are initially filed ex parte and under seal. This ensues the utmost protection for the whistleblower. If a whistleblower can prove that he has been retaliated against for blowing the whistle, the FCA provides that person with strong protections which are not available under the PDA. These protections include reinstatement of the whistleblower’s employment position, two times the amount of pack pay plus interest, and damages the whistleblower incurred as a result of the retaliation.

Most importantly, the FCA offers a financial award of 15 to 25% of the amount recovered by the government in cases where the government decides to intervene, and 25 to 30% in cases where the government declines to intervene. A successful whistleblower is also entitled to be paid legal fees and expenses by the opposing party.

Since the FCA does not require the whistleblower to live or work in the United States, it will be interesting to observe the number of employees from companies located in Ireland that bring claims under the FCA versus the PDA.