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Tesla ex-employee Martin Tripp, a self-proclaimed whistleblower, albeit a saboteur in management’s view, highlights the schisms that exist in opposing perspectives.
A “whistleblower” is a person who exposes any information or activity that is allegedly illegal within a public or a private company.
Tone Munter, a whistleblower attorney states, “Most whistleblowers decide to act because they are confronted with profound wrongdoing. However, many take actions before understanding their rights, and also are unprepared for collateral consequences. Hasty decisions can put them in harm’s way.”
Not all whistleblowers are altruistic and righteous. Professor Alan A. Cavaiola, professional counseling, Monmouth University, states, “It’s important to look at both sides of the coin. Just as there are individuals who are motivated by a sense of moral conscience and altruism while acting on behalf of their corporation or the public at large; there are those who act out of greed, revenge or to advance their careers.”
As a lone ranger warrior, the whistleblower faces a daunting opponent in the corporation. The arduous journey is fraught with significant legal, ethical, financial and personal challenges. Hence, it is imperative to understand clearly the objectives and the subsequent course of actions. Understanding the laws and various legal avenues available can help one make more prudent decisions.
Government Accountability Project (GAP) legal director Tom Devine states, “There are two broad principles. First and foremost, be true to oneself. Understand clearly the pros and cons of coming forward. Second, test the waters by raising the issue internally to put the organization on notice.” A good initial approach towards challenging the potential misconduct could be raising the issue casually, in an informal setting or meeting. When addressing a concern, it is important to follow the “organizational chain of command.” Devine further states, “One should try to be a problem solver rather than be a dissident or a saboteur. Make a record of the concerns, both internally and externally.” This practice can bolster credibility and help avoid deniability – “We had no idea,” by the company.
Whistleblowers can bring allegations to surface, preferably through the internal organizational hierarchy, or externally via legal avenues and the media.
Once the wrongdoing becomes public – the whistle is blown, the ensuing response often focuses the attention towards the whistleblower’s personality and work record, instead of the issues which prompted the whistleblowing. Managers often use vilifying tactics by portraying the whistleblower as a “disgruntled employee,” who is vengeful, imbalanced, or self-serving. Company management attempts to obfuscate the dissent by attacking the source’s motives, credibility, professional competence, or virtually anything else.
There are two broad categories of the whistleblower laws. The first category of laws provides incentives for people to come forward, while the second category of laws protects them from retaliation. In varying degrees, as many as 57 federal laws protect and sometimes reward whistleblowing.
Most states also have laws protecting whistleblowers from retaliation caused by a claim filing or a violation reporting. These state-specific whistleblower laws include prohibited employer activities and remedies for violations.
Employees who are fired, demoted or blacklisted for uncovering illegal activity can seek protection from more than 20 anti-retaliation statutes.
The False Claims Act (FCA), or the “Lincoln Law,” was passed by Congress in 1863. It is the primary litigation tool to combat fraud against the federal government. This law allows the federal government to impose liability on persons and companies, typically federal contractors, who defraud government programs.
The FCA law includes a “qui tam” provision that gives an individual a special right of action in the court. This provision deputizes private citizens to file suits against the perpetrators on behalf of the government and the individuals themselves, especially when the accused organization employs the individual. These cases are initially filed secretly “under seal.” The government, then confidentially investigates the claims and decides whether or not to join the lawsuit. Initially, only the government and the whistleblower’s lawyer know the identity of the whistleblower. Eventually, this information becomes public, but this quiet period can give the whistleblower the necessary time to prepare for the onslaught of consequences.
If the whistleblower files a case under the FCA law and if the government can obtain a recovery, then the whistleblower can earn between 15% to 30% of the recovery.
The Dodd-Frank Wall Street Reform and Consumer Protection Act– “Dodd-Frank Act,” includes a variety of protections for whistleblowers who intent to disclose potential financial frauds -situations in which the monetary damages to the federal government are not visible.
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