Whistleblowers deserve remuneration — all of them.

The United States continues to expand its whistleblower reward programs, and that is a very good thing.

These programs open the door to insiders bringing forward information that roots out fraud and protects the public from unhinged corporate power. Since the start of the Securities and Exchange Commission’s (SEC) whistleblower reward program, whistleblowers have helped the government recover over $6.3 billion in monetary sanctions against companies that have done wrong.

Congress then further strengthened the nation’s ability to uncover fraud and corruption by creating a whistleblower program for the Financial Crimes Enforcement Network (FinCEN) in 2021 and expanding it in 2022. Strong financial incentives under that program will bring evidence of money laundering and sanctions evasion fraud to light.

The financial incentives in the SEC and FinCEN whistleblower programs, which provide whistleblowers with 10 to 30 percent of the fines the government imposes, have undoubtedly increased tips sent to government agencies. The SEC program was born in 2010, in the wake of the financial crisis, and paid its first whistleblower award in 2012. Since then, the size of awards and number of tips have been growing.

This year, the SEC announced its largest ever whistleblower award, at $279 million. While that sounds like a lot of money, the government recognizes that whistleblowers are invaluable assets to law enforcement: without encouraging them to come forward for the greater good, we would not have the detailed information necessary to provide insight into the inner workings of banks’ and corporations’ shady practices.

The FinCEN program is in its infancy — it has not yet issued an award or published rules. The program may be modeled after the SEC’s program, but this nascent state provides FinCEN with a unique opportunity to improve upon its older cousin: retroactive award eligibility.

The SEC decided, and a court confirmed, that whistleblowers who brought information about wrongdoing to the SEC before its whistleblower program started in 2010 would not be eligible for awards — even if their tip sparked an investigation that concluded after 2010. This feels fundamentally unfair: These people took all of the same risks as those who blew the whistle later, and they deserve to share in the reward in the same way. But, when it comes to the SEC, they cannot receive a reward.

FinCEN can tailor its own program to avoid that outcome.

The creation and expansion of the FinCEN whistleblower program generated a limbo period for some whistleblowers. Some people went to the government to report Bank Secrecy Act violations after the law was passed but before the FinCEN Office of the Whistleblower existed. Similarly, others brought forward tips about sanctions violations between 2021 and 2022, when the office was up and running but did not yet cover sanctions issues.

There is a simple fix to protect whistleblowers caught in this limbo: FinCEN rules can provide for some retroactive award eligibility. They can allow for rewards for whistleblowers who made tips before the FinCEN whistleblower office covered the tips’ subject matter but who sparked investigations that concluded after it did.

Investigations into money-laundering and sanctions violations can be lengthy; many that began before the FinCEN whistleblower office existed will wrap up years from now, when we hope the office will be even more robust. Regardless of when they take the bold step of contacting the government, whistleblowers risk financial and emotional ruin — and sometimes even their physical safety — to bring truth to light. Retroactive award eligibility recognizes that fact.

Yes, retroactivity tends to make lawyers nervous, since most laws are forward-looking. But limited retroactivity, with a well-defined scope, would avoid letting brave but calendrically unlucky whistleblowers fall through the cracks.

Life after whistleblowing can be challenging. Understandably, most people are not going to torpedo their careers in industries in which they’ve built up expertise to then be forced to take up a lower-paying job, or worse. If the only way to bring forward information were to jump out of a plane with documents, a reward provides whistleblowers with a parachute. For those who took the leap before there was a parachute in their size, retroactive award eligibility can put out a safe landing pad.

Elizabeth Soltan is a whistleblower attorney at Constantine Cannon.