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:


  • 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.


  • 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.


  • 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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Danger: Workplace Ahead

Posted on January 14, 2015. Filed under: reducing employer costs | Tags: , , , , |

In the wake of recent events, particularly the attack on Charlie Hebdo in Paris, employers and workers alike are giving more thought to workplace violence. Unthinkable and almost unprecedented, an assault by those with no connection to the workplace is rare. However, approximately two million people throughout the U.S. are victims of non-fatal violence at the workplace, and the Department of Justice has found violence to be a leading cause of fatal injuries at work, with about 1,000 workplace homicides each year.

Workplace violence, defined as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site” is on the rise. Among co-workers it presents itself in many forms including:

  • concealing or using a weapon;
  • physical assault upon oneself or another person;
  • property damage;
  • intimidation;
  • harassment or stalking,
  • physical aggression (shaking fists, kicking, pounding on desks, punching a wall, angrily jumping up and down, screaming at others);
  • verbal abuse including profane and vulgar language; and
  • threats (direct or indirect), whether made in person or through letters, phone calls, or electronic mail.

Additionally, workplace violence is increasingly domestic in nature, spilling over from the home into places of business where partners are predictably accessible. In this form, it affects both domestic partners and coworkers. Lastly, employees that interact more closely with the public are more at risk. Each year, workplace violence costs businesses millions of dollars through loss of productivity, diversion of management resources, increased absences, and increased security costs.

It is the role of Human Resources to create and maintain an effective and clearly communicated Workplace Violence Program that assists employees in prevention strategies, fosters a safe and secure workplace environment, assists employees in crisis, and provides a course of action in response to workplace violence. Components of a more comprehensive Workplace Violence Program should include early recognition of warning signs and early intervention, extensive training and education of all workers, and (ultimately) clear guidelines on what to do when an incident occurs. It’s something we don’t want to think about, but can scarcely afford not to.

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Posted on February 15, 2012. Filed under: Uncategorized | Tags: , , , , , , , |

During the month of February, the symbol of the heart is prominent.   We recognize American Heart Month (http://www.heart.org/HEARTORG/ and we celebrate Valentine’s Day.  It is a time when we take care of our hearts and take care of those who hold our hearts.  But while greeting cards, roses and heart-friendly dark chocolate candies abounded and brought smiles to many faces, some people who found these trinkets of affection on their desks at work viewed them more as tokens of offense.  As harmless as these tokens may seem, when they are given under certain circumstances, this intended act of kindness may be considered sexual harassment.

The Equal Employment Opportunity Commission (EEOC), (www.eeoc.gov ), the United States federal agency tasked with defining and regulating certain civil rights defines sexual harassment as:

“[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.”

Based on the EEOC’s definition, sexual harassment can be verbal or nonverbal, physical or visual.  It can range from flirting to touching and from comments to jokes.  It is not even necessary for a person to make an explicit statement.  Circulating an email or picture of a sexual nature can be sexual harassment.  Innuendo can also be considered sexual harassment. And sexual harassment can be directed toward a person of the opposite sex or same sex.

A key component of sexual harassment is that the conduct must be unwelcome.  Conveying that conduct is unwelcome is not always easy, especially if the individual’s job is subordinate to the person who initiates the unwelcome conduct.  Another component of sexual harassment is the severity and frequency of the conduct.  If a single unwelcome act is of a severe nature, such as a sexual proposition, then the single act alone may be considered sexual harassment.  On the other hand, a single act of placing on an employee’s desk a card, which says “will you be my valentine,” without any notice that such a gift is unwelcome may not be considered severe enough to constitute sexual harassment.  Repeatedly giving an employee a card with this message, however, after having been asked to cease doing so could be considered sexual harassment.

The first two categories, characterized as “quid pro quo”, which means “this for that”, have generally been thought to be actions which can only be carried out by persons having the authority to affect an individual’s terms or conditions of employment, such as managers or supervisors who make decisions regarding hiring and termination, performance evaluations, promotions, salaries and even the location at which an individual performs his or her work.  The last category, however, is fair game and can be initiated by persons who not only work for the employer but it can also be initiated by persons who do business with the employer, such as vendors and courier services.  At the heart of the matter is that employees, whether they are paid a salary or wage, whether they volunteer or whether they are under a contract, have a right to work in an environment which is free from unwanted sexual advances.

For information and training on sexual harassment awareness and prevention, call the HR4NON-PROFITS team at 630.830.4443 or visit our website at http://www.hr4nonprofits.com. Follow us on Facebook and Twitter.

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