By GAP President Louis Clark.
There is a great deal of talk recently about “shovel-ready” projects. These are state, local and federal construction programs that will be the first to spend hundreds of billions of dollars as part of the recently enacted American Recovery and Reinvestment Act (ARRA), better known as the Stimulus Bill, in the hopes of lifting the economic condition of our nation.
There is a serious problem, however. Other than in the heavily regulated nuclear industry, there are few government contractors in the country with any experience in dealing with whistleblower protection provisions, required of all those receiving stimulus funds.
With so much money being injected into the economy, the opportunities for waste, fraud and abuse are vast. Whistleblowers are going to be essential to rooting out corruption – these honest and courageous individuals will be on the front line – the eyes and ears of American taxpayers.
The further that money flows from the normal financial accountability controls of Washington, D.C., the more the federal government relies on honest workers in the hinterland to keep tabs on swindlers.
Does anyone remember the graft that was rampant throughout the construction of the interstate highway system? Who in the government is now going to be overseeing this current largess? Certainly not local and state highway departments. The job will fall to federal inspectors general offices (IG) that, frankly, will be overwhelmed. Perhaps shovels are ready. But human resources departments are simply not prepared for what is coming.
For starters, the stimulus bill requires that any employer – corporate or state and local government – receiving funds must prominently post a notice of the rights of employees to blow the whistle, and their remedies if they suffer retaliation for the exercise of those rights. No such poster exists.
It’s the sweeping nature of those rights and remedies that could either bankrupt contractors or transform their workplace cultures as significantly as anti-child labor legislation did. Employees who reasonably believe they have witnessed gross mismanagement of stimulus funds, violations of law, specific threats to public health, or abuses of authority have a right to blow the whistle and receive protection against any form of retaliation. They can take concerns up the chain of command to government agencies or Congress. According to court precedent, they can also take their concerns public.
If an employee’s job is to investigate, ensure quality, audit or inspect, protections are even greater. These employees are fully protected if discriminated against for performing routine job duties – typically reporting problems to managers. Finally, quality assurance personnel will have the full backing of the law should a production manager decide to steamroll them to make crushing, unreasonable production goals.
But the entire remediation process can take time, and be stretched out. Employees claiming discrimination must submit a claim within 180 days to the appropriate IG. In turn, that office must complete its investigation of retaliation within 180 days and, with explanation, is allowed one extension for another six months (only the alleged whistleblower can consent to subsequent extensions). Once an investigation is complete, the IG must send results to federal agencies, which have 30 days to issue a ruling. If these strict deadlines aren’t met, the employee has the right to file a lawsuit against the employer in federal district court and demand a jury trail.
Unfortunately, many companies will resist cooperation and drag processes out, as a tactic, which further delays the work of inspector offices. Missed deadlines and numerous jury trials or forced settlements are inevitable.
Here is what has to happen immediately: Any institution, corporate or government, that receives funds should adopt a written code of conduct demanding that no employee violate the law and setting forth clear steps to report misconduct. There needs to be a zero tolerance policy for retaliating against whistleblowers (with appropriate procedures for its implementation), training for all managers, and educational materials for all employees. Finally, employers should create credible “employee concerns” programs to investigate, document and resolve all internal and external whistleblower complaints.
Any company, agency or institution that partakes of the fruits of this recession must transform itself into a model for providing employee freedom of speech.