Employment Law, Strategic HR

Embrace Your Inner Whistleblower! A Strategy for Avoiding Retaliation Claims

There’s a huge divide between the whistleblower’s view of a situation and the legal analyst’s view, says attorney Brad Cave of Holland & Hart LLP in Cheyenne, Wyoming—and editor of Wyoming Employment Law Letter. If employers can “put on the whistleblower’s hat,” he says, they may be able to significantly reduce the risk of a retaliation suit.Whistleblower

Cave’s suggestions came during the Annual Meeting of the Employers Counsel Network (ECN) in Nashville. The ECN is the team of lawyers from the fifty states, Canada, and D.C. who write BLR’s state employment law newsletters. Cave was joined in the presentation by Dr. Ken Broda-Bahm, Senior Litigation Consultant at Persuasion Strategies.

What Drives Whistleblowers to Risk It?

Whistleblowers face a dilemma, Cave says. They think they are right and they feel morally compelled to do something. On the other hand, by making a complaint, they know they are placing themselves in a position of significant risk. They risk their jobs, their relationships, their career futures. Managers face some risks too, but they are largely in the managers’ control, Cave says.

Retaliation Leads All charges

Retaliation continues to be the most prevalent claim—and recoveries in 2016 topped $182 million. There’s an annoying aspect that most attorneys have experienced, says Cave: The situation in which we win the discrimination claim but lose the retaliation claim.

What’s in the Whistleblower’s Mind?

Whistleblowers have two things in their minds, Cave says. First, they complained about something, and second, something bad happened to them. They don’t care about legal definitions of retaliation or about how much time elapsed between the reporting and the bad thing. (It’s also true, points out attorney Jonathan Mook—partner of DiMuroGinsberg PC and editor of the Virginia Employment Law Letter—that many whistleblowers become vigilant for retaliation after they blow the whistle; they see it in any act and it becomes a self-fulfilling prophecy.)

What Activities Are Protected

Two categories of activities are protected, says Cave: participation and opposition.

Participation

  • Filing a charge or making an internal complaint
  • Answering a question in an investigation
  • Testifying in a proceeding

Opposition

  • Complaining about discriminatory or harassing conduct
  • Refusing to follow orders that would result in discrimination
  • Speaking out on behalf of a coworker

Reasonable Belief

Faced with a complaint, employers tend to say “they were making it up.” But that’s not usually the case; the employee generally has a “good faith belief” that he or she is right. And that’s all that’s required legally. The complainer does not have to be right about the complaint.

A whistleblower who has been retaliated against is:

  • An applicant or employee,
  • Who has a reasonable belief that conduct is unlawful when reported,
  • Has engaged in protected activity, and
  • Has suffered an adverse action.

What counts as an adverse action? Some examples:

  • Negative performance evaluation
  • Transfer to a less desirable position or shift
  • Making work more difficult
  • Verbal abuse or ostracism
  • Threats to report to immigration status or criminal conduct

Strategy to Avoid Retaliation Claims

Develop a strategy that takes into account the employee’s perspective—that they believe that they are right and that they act as a moral imperative, says Broda-Bahm. You start with the following differing perceptions:

Company’s Perception

The employee is:

  • A divisive malcontent,
  • Who is making excuses for poor performance, or
  • Using the threat of a retaliation suit to avoid termination.

Whistleblower’s Perception

The employee is:

  • A self-sacrificing hero,
  • With noble motives,
  • Who is being crushed for trying to protect the company, coworkers, or self.

Psychology of Whistleblowing

A 2015 research article titled “The Psychology of Whistleblowing” provides some insight, says Broda-Bahm. The researchers (James Dungan, Adam Waytz, and Liane Young, from Boston college and Northwestern University) wrote:

From one perspective, whistleblowing is the ultimate act of justice, serving to right a wrong.

From another perspective, whistleblowing is the ultimate breach, a grave betrayal.

The researchers conducted a number of studies based on moral foundations theory, and found that whistleblowers face a tension between two values: loyalty and fairness. They also found that:

  • In institutions in which loyalty is emphasized, whistleblowing is less common and less supported.
  • In situations in which fairness is emphasized, whistleblowing is more common and more supported.

In one of the studies, Broda-Bahm says, participants were “primed” by being asked to read essays, some of which endorsed fairness values, and some of which endorsed loyalty values

Then participants were presented with an opportunity to report a coworker who shirked his or her work duties.

Those primed to embrace fairness blew the whistle more often than did those who were primed to endorse loyalty.

Researchers also found—reviewing other studies—that the following personal factors correlated to higher rates of whistleblowing:

  • Male
  • Highly educated
  • Longer tenure at the company
  • Extrovert
  • Proactive personality

In addition, there were situational and cultural factors:

  • Level of organizational support for whistleblowing
  • Mechanisms for reporting wrongdoing
  • Protections for reporting wrongdoing

Fortunately, says Broda-Bahm, many of these factors are in the company’s control. (As an aside, he says, note that Fox News had a hotline and a policy—but whistleblowing was not in the culture.)

A culture that welcomes criticism:

  • Encourages internal reporting
  • Increases internal resolution and loyalty
  • Decreases charges to outside agency

What It Takes

If you encourage employees to blow the whistle internally and dissent is viewed as a good thing that makes the company better, loyalty is enhanced and external whistleblowing is less likely. Companies should:

  • Adopt strong policies and publicize them widely.
  • Train supervisors on welcoming and channeling criticism.
  • Be sure leaders value and reward internal constructive criticism.

When you do this, whistleblowing becomes less noble and more normal, Broda-Bahm says.

Litigation Aspects

As far as litigation aspects, Cave suggests the following:

  • Don’t blame the employee for breaking ranks.
  • Seek to normalize the act of whistleblowing.
  • Point to policies and culture that expects whistleblowing activity by all employees.
  • The company was responsible and fair.

If your organization has embraced a culture of criticism, you can point to adjudicators your policies and practices that show that. That in turn lets you suggest that retaliation is not a likely act—whistleblowing is routinely welcomed. The fact that someone reported to an outside agency is cause for concern, but doesn’t suggest retaliation.

Remember that juries are often swayed more by their sense of fairness than by what the law says or what the judge’s instructions are.

Questions the Company Should Ask

Finally, says Cave, ask yourselves these questions:

  • Are we clear and honest about what we want?
  • Are we encouraging “dissensus”? (When discussion and criticism and reporting are part of your job and part of your culture, it’s harder to get worked up)
  • Is whistleblowing normalized?
  • Are we aiming to keep it nonpersonal?
  • Are we consistent?
  • Do we follow through? (Employees need to see that the complaint process is followed. Publish outcomes (“We investigated” and “we corrected” or “we found that there wasn’t a violation, but we see the need for more training.”)
  • Do we properly implement whistleblower discipline? (Yes, says Cave, you can impose discipline on someone who is a whistleblower, but only with care.)
Stephen D. Bruce, Ph.D. PHR SHRM-CP, BLR’s Managing Editor, Media, is an award-winning writer and editor who has been following and clarifying developments in the HR field for 20 years. Currently the editor of the 250,000 subscriber HR Daily Advisor, the most-read HR publication in the US, and the THRIVE HR Magazine. He has written many books (Seven Secrets of Managers Who Avoid Employee Lawsuits, Face to Face: Every Manager’s Guide to Better Interviewing, Best Practices for HR Managers), newsletters (HR Manager’s Legal Reporter), plus training materials, videos, webinars, CDs, and more. He is the host of BLR’s podcast, HR Works, and has been named a Top 25 HR Influencer.