This article was originally published here.
Here’s What Actual Whistleblowers Want You To Know Before You Become One, Too
Boeing’s safety features and policies are under intense scrutiny after two 737 Max 8 jets crashed less than six months apart, killing everyone on board. And last week, the Federal Aviation Administration announced that more than 300 Boeing 737s may have faulty parts. In an apology about the crashes, CEO Dennis Muilenburg said, in part, that the company takes responsibility to “build and deliver airplanes to our airline customers and to the flying public that are safe to fly, and can be safely flown.”
But one Boeing whistleblower says he observed a different mission, in which safety was not the top responsibility. John Barnett, a former quality manager who worked at Boeing for almost three decades until he retired in 2017, filed a whistleblower complaint to federal regulators about his experiences at a South Carolina plant that manufactures Boeing’s 787s, including the Dreamliner. “I can’t sleep at night knowing that the flying public is at risk,” he said, later declaring, “I would not fly a Dreamliner.”
Barnett’s job at Boeing was to make sure defects were not passed from one part of the production process to the next, or to the customer. In his complaint, he alleged that Boeing South Carolina failed to properly track “nonconforming parts,” or parts that don’t meet engineering requirements. That claim was substantiated by the Federal Aviation Administration, according to a 2017 FAA memorandum reviewed by HuffPost.
“These are critical parts,” Barnett said of the nonconforming components. “It’s nothing to play with, and I saw it all the time where parts were being installed, and non-conformances weren’t addressed.”
He initially tried to resolve the issues inside the company before deciding to become a whistleblower.
“I was fighting internally with Boeing, with my own leadership, going to ethics [officers] and HR,” he said. “But it just got to the point where they just didn’t seem to be addressing the safety concerns that were affecting the flying public and the fleet. So that’s when I felt I had to go outside of Boeing.”
Being a whistleblower means asking questions or exposing issues people in power would rather keep quiet. It was two young whistleblowers who recently helped take down Theranos, a health care company that defrauded investors and lied to patients and doctors about its capabilities. They and tobacco company whistleblower Jeffrey Wigand, former Enron Vice President Sherron Watkins, environmental activist Erin Brockovich and National Security Agency contractor Edward Snowden have all been subjects of Hollywood films and documentaries.
But behind these glamorous performances is the scary, frustrating and draining reality of going up against a well-lawyered institution that may also be full of people with a vested interest in stifling any concerns.
Many whistleblowers lose their jobs, face tremendous stress and legal fees, are frequently bullied or harassed, and are often run out of their fields and industries. More than 1 in 5 whistleblowers have said they faced retaliation for coming forward.
So, want to sound the alarm on your company? Do you want to “get away with committing the truth,” as it’s put by Tom Devine, legal director at the nonprofit Government Accountability Project and the co-author of “The Corporate Whistleblower’s Survival Guide”? Take it from whistleblowers who have been there: It will be taxing emotionally, professionally and financially. You will not be the same person you once were. But you can be better prepared for the challenge if you follow these steps.
Keep a contemporaneous record of what you see
When former bank examiner Carmen Segarra wanted to show how the Federal Reserve was reluctant to challenge the banks it is supposed to supervise, she got it on tape.
Using an innocuous USB-stick device, Segarra secretly recorded 46 hours of conversations with co-workers during the seven months she was a bank examiner assigned to look into Goldman Sachs’ conflict-of-interest policies. She did it in New York, a state in which only one person has to consent to being recorded. You should consult with a lawyer familiar with whistleblowing and look up the legality of secretly recording your workplace before you do the same.
Devine said he advises whistleblowers to keep a contemporaneous record every day of relevant conversations and the reactions of management officials they talk to.
“That contemporaneous record can be invaluable two or three years later in a trial when one side is remembering everything just perfectly for them to win the case versus another side that has the contemporaneous record from before there even was any lawsuit,” he said.
Keeping track of who was present and who said what is what Barnett did at Boeing. “I’ve adopted the philosophy that if something don’t quite sit right with me, I’ll keep the documentation just in case,” he said.
In Charleston, Boeing management liked “to do a lot of face-to-face,” he said. “They don’t want anything documented. If I had a face-to-face with my manager, I would go back to my desk and send myself an email saying everything that was discussed.”
Know your time and legal constraints
Do your homework and familiarize yourself with what legal help is available to you, as whistleblower laws vary by state and occupation.
Environmental, food safety and other groups of whistleblowers have special protections, and federal employees are protected under the 1989 Whistleblower Protection Act and 2012 Whistleblower Protection Enhancement Act.
After you do your homework, hire a lawyer familiar with whistleblowing sooner rather than later to guide you through the complex procedures and how to secure evidence. Because corporate records can be destroyed or hidden after a whistleblower comes forward, you want to make sure you have copies of evidence you have obtained lawfully.
“Confer with a lawyer before you expose yourself to any risk,” Devine said. “It needs to be a lawyer who is sympathetic to the concerns the whistleblower has.”
Once you are prepared to come forward with accusations of a company’s misconduct, it can be a race against the clock. In Barnett’s case, he said the company retaliated against him after he came forward with his concerns. Under the AIR21 Whistleblower Protection Program, he had just 90 days from the date the alleged discrimination occurred to file a discrimination complaint in writing. He made the deadline with only a few days to spare.
Citing his experience with Boeing, he warned that companies may also purposely eat up your time so you will not be able to make a reporting window.
Be prepared for career retaliation
To tell the flying public about a threat to U.S. aviation, Robert MacLean lost his job twice and took his yearslong fight to the Supreme Court. When MacLean was working as a Transportation Security Administration federal air marshal in 2003, he was briefed about an al Qaeda plot to conduct more hijacking missions. Shortly afterward, MacLean and other air marshals received an unsecured text message from the TSA canceling their shifts on overnight flights, a decision made for budget reasons.
Concerned that canceling shifts during a threat was risky and wrong, he spoke up. “I went to three offices and the inspector general, and in the end, they told me that agencies always blow their money, and there’s nothing you can do about it. And that’s when I went to NBC News,” he said.
When the public found out the TSA was reducing the presence of air marshals to save the costs of an overnight hotel room, there was a congressional outcry and the TSA reversed its position, calling it a “mistake.”
The TSA learned that MacLean was the one who disclosed the text message, and the agency fired him in 2006 for disclosing sensitive security information without authorization. He was unable to get another job in law enforcement and fought his firing, winning a U.S. Supreme Court battle for reinstatement in 2015 after justices determined he was entitled to whistleblower protections.
But not even a Supreme Court victory could keep MacLean in his job. He was fired again and accused of improper conduct ― accusations he denies. He is currently unemployed. “Your retaliators will be rewarded and you’ll be blacklisted from employment,” MacLean said of whistleblowers. “The only type of employment I was able to get was either manual labor or commission-only.”
Some 84% of whistleblowers go public only after first trying to report internally, according to a 2011 National Business Ethics Survey. But when an employer knows you’re raising concerns, you are likely to face backlash. “Once an employee is exposed as a potential whistleblower, the organization will likely take a preemptive strike to discredit that person,” said Devine, who was also MacLean’s attorney.
Whistleblowers ought to make a fully informed decision before committing to the long, hard road ahead. Devine said he first tries talking potential whistleblowers out of the decision to let them know what they are getting into and see if they are prepared to follow through.
“If they quit in the middle, it would have been far better to have remained silent observers,” he said. “Your employer will do it much more intensely than I have the capacity for.”
Don’t expect to get rich
“If you’re in it for the money, you better be working for a giant bank and have a really good attorney,” MacLean said.
Under the False Claims Act, a private U.S. citizen that knows about government fraud can file a whistleblower suit on the government’s behalf and is eligible to receive up to 30 percent of the money it recovers. These cases are called qui tamsuits, which comes from a Latin phrase meaning “he who brings an action for the king as well as for himself.” The rewards can be big. Former banker Bradley Birkenfeld got a $104 million whistleblower award from the IRS in 2012, for example. But these suits come with conditions, time limits and lawyers’ fees, so don’t expect to become a multimillionaire overnight, or at all.
Yes, it is possible to be vindicated and get money from whistleblowing. But it is not easy money. Researchers behind a 2010 study published in The New England Journal of Medicine interviewed 26 whistleblowers in major health care fraud cases who received a share of the recovery fund. The whistleblowers reported frustration over being kept in the dark by the Justice Department on their cases and years spent in a limbo of uncertainty. Eight reported financial ruin.
“I just wasn’t able to get a job. It went longer and longer,” one of the whistleblowers said. “I had a rental house that my kids were [using to go] to school. I had to sell the house. Then I had to sell the personal home that I was in. I had my cars repossessed. … Financially I went under.”
The financial losses related to whistleblowing can take a toll on self-esteem. “You’re going to have to beg for money,” MacLean said. “I went on welfare, so I got food stamps. We went on Medicaid. And we got cash help. During the process, I had to go in for these counseling sessions and people had to show me how to do a résumé. It was really embarrassing.”
MacLean cautions others from becoming whistleblowers.
“It was my obligation as a law enforcement officer, but I don’t want people to go through what I did,” MacLean said. “You don’t want to do this to your family.”
Talk to your support system
Do not leave your family and loved ones in the dark if you can help it.
Devine said you should confer with your family and anyone else in your life who would be affected by the whistleblowing. “The magic word to getting away with committing the truth and making a difference is solidarity. If there is solidarity from their family,” whistleblowers are “liable to be able to survive emotionally and deal with the stress,” he said.
“If there is solidarity from society, it will turn their truth into power.“
Barnett said the harassment and retaliation he experienced at Boeing affected his health and led to his retirement. He said the support of his family and talking to a counselor has helped.
“When you’re beat down every day, you start questioning your own sanity,” Barnett said. “I think it’s critical that people reach out and get support they need, because this is a very hard battle. I can’t tell you how many hours I’ve stayed awake at night pacing the floor, trying to figure out what to do, and how to do it.”
It is all too easy to become cynical and bitter as a whistleblower exposed to an underbelly of corruption. But “that’s self-defeating,” Devine said. “It’s essential to presume good faith both to avoid alienating the investigator but also to preempt any plausible cover-ups.”
Remember your values
As your professional role models, bosses can push you to adopt their own bullying, unethical behavior. You can break away from the social pressure to stay silent by remembering who you are and what matters.
Barnett drew on his decades of experience when it was time to take a stand. “People here don’t have the experience and knowledge to stand up to their leadership,” he said, citing how new his plant was. “Going back to my early days as a quality manager, some of my past leadership beat into my head that, ‘You’re not here to make friends, you’re here to make sure that the airplane is built right.’”
For Segarra, remembering who she was and what she wanted to accomplish in her life kept her going when she reported her concerns about the Fed.
“I always think about my life in terms of ‘If it were to end tomorrow, am I doing something that is meaningful?’ The better you know yourself and you know what it is that motivates you and that drives you, the easier it is to go through an experience like this and not lose yourself but come out of it enriched and stronger and better,” she said. “For me, I’m not driven by power, and I’m not driven by money. I’m driven more by a sense of leading a meaningful life. A meaningful life is not necessarily a happy life.”
Put your contribution in perspective
Segarra filed a lawsuit against the New York Fed and her supervisors in 2013, saying she was wrongfully terminated when fired in 2012 on “performance grounds.” A federal appeals court dismissed her case, saying she failed to link her firing with Goldman Sachs’ alleged violations.
She is now a lawyer in private practice.
“There is a lot of failure in this story, and failure produces scars,” Segarra said. “For me, the whistleblowing experience is one of those scars that I’m proud of.”
C. Fred Alford, professor emeritus of government and politics at the University of Maryland, observed about a dozen whistleblowers in a support group while working on his book “Whistleblowers: Broken Lives and Organizational Power.”
When it comes to whistleblowers, “the ones who survive are the ones who are willing to say, ‘I’m going to do the right thing because it’s the right thing to do and hope that it works. And if it doesn’t, I’ve made these contingency plans to move on,’” he said.
In her book “Noncompliant,” Segarra acknowledged that there was “zero chance” she would get her job back. But she said her goal was to push the conversation forward. Her story became more public after it was turned into a documentaryfor “This American Life” in partnership with ProPublica, which then prompted a U.S. Senate subcommittee hearing on regulatory capture.
“Although I failed on my particular issue, if you will,” she said, “I think that just by doing it and overcoming my shyness and agreeing to be so public about it, I think it has had a knock-on effect that will hopefully be positive in the long run. It’s not a sprint; it’s a marathon. I think that working towards having a society that is less corrupt and where there is less collusion and where people are able to operate with a sense of trust is something that is and should be a long-term goal of the U.S. And in that sense, I feel like I was successful because I was able to point this out and lived to tell the tale.”