HR Should Educate Employees About Protecting Whistleblowers' Rights

 

Allen Smith, J.D. By Allen Smith, J.D. October 10, 2019
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​The emergence of whistleblower claims that President Donald Trump sought a foreign country's interference in the next presidential election gives employers an opportunity to educate their employees about whistleblower laws.

There are varying whistleblower laws, but they have several things in common: The anonymity of the whistleblower should be protected to the maximum extent possible; his or her complaint should be investigated; and the whistleblower should not be subjected to retaliation.

The whistleblower's motives are irrelevant, and he or she doesn't have to be right but must have a reasonable belief that the complaint is true, said Meg Campbell, an attorney with Ogletree Deakins in Atlanta. In addition, Campbell said, the whistleblower doesn't have to obtain the information firsthand.

Whistleblower Laws

Numerous federal and state statutes and the common law in many states provide whistleblower protections.

The federal Whistleblower Protection Act protects from retaliation specified federal employees and applicants for federal employment who lawfully disclose information they reasonably believe shows a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

The statute does not protect employees in federal intelligence agencies. The whistleblower complaints that have received so much recent attention were submitted under the intelligence community inspector general statute, said Edward Ellis, an attorney with Littler in Philadelphia.

The whistleblower protections in the Sarbanes-Oxley Act (SOX) deal primarily with publicly traded companies and address the problem of fraud in those businesses. The whistleblower provisions in the Dodd-Frank Act deal with the financial industry and are also primarily concerned with fraud.

In addition to SOX and Dodd-Frank, Congress has enacted more than two dozen statutes that contain whistleblower protections, including laws specific to the automotive, chemical, nuclear, pipeline and trucking industries, among others. "Whistleblower protection today is quite broad," Ellis said.

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Anonymity

Employers should "do whatever possible to try and ensure that the whistleblower is not identified—minimizing the risk of co-worker ostracism," said Greg Keating, an attorney with Choate Hall & Stewart in Boston.

Nonetheless, there may be some information that the employer may have to share, Campbell said. Suppose a whistleblower claims that a specific person has performed an accounting task improperly. The employer will have to follow up on that tip. While the employer must try to protect the confidentiality of the source, the information won't be confidential, she said. Sometimes there are situations where a colleague will be able to determine who the whistleblower is, despite an employer's best efforts to protect his or her identity.

Nonetheless, witnesses in an investigation should be told to refrain from pinpointing who the whistleblower is or who other witnesses are, Campbell said. Whistleblowers and witnesses are protected from retaliation, which is harder to prevent once the whistleblower's or witnesses' identities become known. Participants in the investigation should be told not to tamper with the investigation or try to influence other witnesses.

Investigate

Avoid the impulse to dismiss a tip that comes from a worker with a problematic employment history, recommended Brian Neil Hoffman, an attorney with Holland & Hart in Denver. "Consider tips as if they arrive from a confidential source," he said.

Campbell recommended the following steps in investigations of whistleblower complaints:

  • Be prompt and thorough.
  • Comply with policies, practices and procedures, and applicable laws.
  • Be transparent to the extent possible and be honest with all stakeholders.
  • Don't make promises you can't or shouldn't keep.
  • Reinforce the culture of compliance in all communications about the investigation.
  • Don't compromise protections for whistleblowers and witnesses.
  • Take proper steps to address the findings of the investigation.

For instance, if an internal control such as an accounting rule wasn't followed, train workers on how to follow such rules. The employer may also want to discipline the worker who violated the internal control.

If the whistleblower is mistaken about his or her allegation, the worker should be told the outcome of the investigation.

If there is a retaliation complaint, there should be a separate investigation of it, Campbell said.

Retaliation

Retaliation is common, according to Jason Zuckerman, principal of Zuckerman Law, a Washington, D.C.-based firm that represents whistleblowers. Protect the whistleblower against retaliation, including subtle forms of reprisal such as the individual being sidelined or marginalized at work, he said.

When employees are afraid to report internally, they may take their concerns directly to regulators, depriving companies of the chance to address the concerns, Hoffman noted. Under Dodd-Frank, whistleblowers must report to the Securities and Exchange Commission to be protected from retaliation. This rule does not apply to SOX whistleblowers.

"Whether there is a culture of fear of retaliation depends on how effectively the employer walks the talk on compliance," Campbell said. "Tone at the top is critical, as is the tone at the middle. Employers should regularly revisit, revitalize and reinforce their commitment to a robust culture of compliance."

Fear of retaliation can deter internal reporting and deprive a business of important information about wrongdoing within the company, Ellis said.

"These situations often grow until the company becomes a target for law enforcement," he added. "A significant investigation hurts a business's brand, may lead to significant legal expenses and criminal charges against the company's leadership, and may lead to loss of revenue due to termination of significant business relationships."

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