What To Know Before You Whistleblow

Posted on February 13, 2015. Filed under: Data, employee misconduct, employee protection | Tags: , , , , |

A whistleblower is any worker, former worker, or member of an organization who reports misconduct to persons or entities that have the power to take corrective action in response to a violation of law, rule, regulation or a direct threat to public interest. Whistle-blowing  includes allegations fraud, health/safety violations, and corruption. Whistleblowers are essential in helping to expose waste, abuse, mismanagement and threats to public health and safety. Their disclosures save billions of dollars, and often, human lives. While whistle-blowing is frequently done on the way out the door, those who remain within their organizations should be prepared to face hostility and resentment from peers and superiors.

Whistleblowers face the dilemma of protecting their employer (and themselves), or stepping forward when something inappropriate is taking or has taken place. Approximately one-third of the individuals who felt they had been identified as a source of a report of wrong-doing perceived either threats or acts of reprisal, according to “Blowing the Whistle: Barriers to Federal Employees Making Disclosures,“ Merit Systems Protection Board (MSPB) , 2010. A whistleblower may be terminated, moved, demoted, or otherwise harassed. Those who are the victims of workplace retaliation may discover that the laws that protect them are limited.

The Sarbanes-Oxley Act of 2002, enacted in response to several high-profile corporate and accounting scandals (most famously Enron), established new or enhanced standards for all U.S. public company boards, management, and public accounting firms. Similarly, the Whistleblower Protection Enhancement Act of 2012 (WPEA) increased the scope of protection for federal employees. Still, every employee should know that self-protection against retaliation is warranted. With some variation, most whistleblower and anti-retaliation laws place the burden of proof on the employee, requiring that victims have evidence that:

  • They engaged in a protected activity (reporting, testifying, enforcing a law or regulation, etc.).
  • The employer knew or believed that they engaged in the activity.
  • They suffered an adverse action.
  • Their protected activity caused the adverse action taken by the employer.

Short of any smoking gun, this means that an employee will need to collect any circumstantial evidence of discriminatory motive in order to prove his/her case. The following data may be used to establish a reasonable inference that a retaliation claim is valid:

Performance

  • high work performance ratings prior to engaging in protected activity, and low ratings or “problems” thereafter;
  • previous expressions of satisfaction with work record;
  • absence of previous complaints against employee;
  • charges of “disloyalty” against an employee for engaging in protected activity.

Operational

  • manner in which the employee was informed of his or her transfer or termination;
  • inadequate investigation of the charge against the employee;
  • the magnitude of the alleged offense;
  • determination that the employee was not guilty of violating work rule charged under;
  • differences in the way complainant and other employees were treated;
  • disparate treatment of similarly situated employees or threats or retaliation against other employees for similar conduct.

Timing

  • disparate treatment of discharged employee prior to protected conduct;
  • discipline, transfer, or termination shortly after employee engaged in protected activity.

It is important to note that this information (in no way) is intended to prevent whistle-blowing. Again, violations, abuse, fraud, and unlawful activity should be exposed, especially when public health and safety are jeopardized. However, there are many considerations to note in being an informed and proactive advocate for change.


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