By Steve M. Cohen bio
Employees who successfully don the cloak of a whistleblower have a surprising amount of protection.
Several categories of whistleblower protection exist, depending on the industry and alleged topic of the whistleblower’s alarm. But in many, even most cases, whistleblower laws make allegations of organizational wrongdoing a protected activity, sometimes a profitable one.
Rewards may interfere with the legitimate reasons for whistleblowing
A definite argument can be made for such legislation. Dodd-Frank, for example, was written following the disastrous banking and Wall Street collapse of 2007-2008. Workplace safety, pollution and health care laws frequently follow disastrous accidents where someone is hurt or injured. There is almost always a legitimate concern behind such legislation.
What I question are some reward mechanisms in many of the whistleblower laws. Several start with hefty “rewards” then add on a percentage of the penalty found against the company. That seems likely to guarantee motivations of personal benefit rather than legitimate concern. It’s an understatement to say that some of the alleged charges can become “creative.”
Know the laws relevant to your business
These laws are clearly something all organizations need to beware of. The best general advice I have is this: If you’re involved in a whistleblower allegation case, do things right and do them right away.
Obviously, you need to become familiar with the laws and be in compliance, starting with those that are immediately relevant to your industry. But before employees allege a problem, you should establish an environment where they feel comfortable, even obliged to come to you first. Work with them; do not marginalize them or dismiss their concerns.
The only reason they would have to go outside—become a whistleblower—is if they cannot trust or communicate with you. Be aware—even if you do these things, you could still be in for an unpleasant ride, but if you follow these steps, you will be in a stronger position.
Whistleblower protection is not a permanent free pass
I had one client with an employee who reported the company regarding a safety concern to the Occupational Safety and Health Administration (OSHA). The company weathered an examination and was exonerated. The next year, this same employee reported the company to the Department of Labor on a prevailing wage complaint. Again, the company passed an examination of the allegation and was exonerated.
This employee felt he had whistleblower protection and continued to poison the relationship between other employees and management. He, in fact, did not have that protection. I extricated him, but it was a very delicate situation because of this history.
Conclusion
In our society today, there is often a “jackpot” mentality. This means that many people consider becoming a whistleblower and gaining the opportunity to sue somebody—someone with money—as the way to wealth. Laws that include hefty rewards for whistleblowers play right into this mentality. Partners, owners and managers are wise to know the laws and operate with these dangers in mind.
Related reading:
How to protect your practice against costly FLSA and EEOC claims
Retaliation gets broader and more expensive and is hitting all offices
Workplace violence: a 10-step prevention and liability management plan