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Whistleblowing is in the news this week: Former Acting Attorney General Sally Yates is preparing to testify in front of a Senate panel on May 8th, and CNN reports that she will say she warned the White House about Michael Flynn’s connections with Russia almost three weeks before Flynn was fired.
Now the Trump administration/Russia connection is some intrigue worthy of a John Le Carré novel, but it does make us ordinary schmoes wonder: How would we handle ratting out our colleagues, or our superiors, if we had to—either to protect other consumers and citizens or merely to CYA? If a worker sees some dirty deeds and want to call attention to them, how can they protect themselves legally?
Well, it turns out this is a pretty complicated dilemma, says David Marshall of Katz, Marshall & Banks, but the first thing to know is that whistleblowers are generally protected under federal and state law. “The whistleblower-protection laws (of which there are a couple dozen federal laws and many state and local laws), are designed to protect employees who speak out about matters of serious public concern.” He notes that the particulars of these protections vary from issue to issue, context to context, and from industry to industry—the protections for workers in the nuclear power industry will not be the same as for those in health care, the financial industry, or aviation. But the protection laws do have a few things in common, and potential whistleblowers would be wise to follow a few general guidelines.
Try to resolve the problem using internal channels first.
Jon Tycko, of the Washington firm Tycko and Zavareei, says, “Ask yourself: Is there some avenue within the company or the agency for me to bring this wrongdoing to the attention of higher-ups? That is almost always going to be the first thing that a whistleblower does—to try to fix this problem internally.” Most government agencies or legitimate companies (i.e., not entities set up solely for fraud) have some kind of mechanism or internal process, like an employee or whistleblower hotline, to address illegal conduct. After all, most companies want to know if someone working for them is breaking the law. Document your concerns in writing. And…
Be specific, and stay off Facebook.
“In order to be protected, the employee has to engage in ‘protected activity’—which usually means complaining in good faith about what they reasonably believe to be violations of the certain laws,” says Marshall. That means not just generally complaining to anyone who will listen, or disagreeing with your bosses about corporate strategy or direction, “but complaining somewhat specifically about unsafe or illegal practices. And they have to report those issues either to supervisors within their company or to various regulators.”
And don’t post a status update about your grievances. “In most contexts employees are not protected for reporting wrongdoing to the media, or in social media, or a to a company’s customers or to the employee’s own friends. The speaking out has to be directed to those in positions in responsibility, whether within the company or at government agencies,” says Marshall.
But let’s assume that doesn’t work. If you know your aviation company is manufacturing a part that tends to melt at high temps, and you’ve alerted higher-ups but nothing happens (or you get the brush-off), you’re going to want to…
Gather evidence.
Tycko says, “If a whistleblower calls me and says ‘here’s this story I’m going to tell you about this incredible conspiracy that’s going on inside my company,’ I will sit and listen to the story. And then the question that I will always ask is ‘what evidence do you have that corroborates your story? Some documents that show that what you say is true? Or some other witnesses that were also in the meeting that will tell me that what you’re telling me is true?’
Corroborating evidence is really the key to be taken seriously, because often the stories that whistleblowers tell—the first time you hear them they sound crazy. They sound like a Grisham novel! Separating out the delusional conspiracy theories from the people who are really in the midst of a conspiracy is really the key… and it’s always going be the question of ‘Can you show me something that corroborates this?’”
Which brings us to the trickiest part of the process: gathering evidence, perhaps in the form of documents, from your company. But—
Don’t gather too much evidence.
Leave the flashlight and the Hefty bags at home. Marshall says, “An employee has to act reasonably. They cannot just go rifle through the file cabinets at night and collect troves of documents, grabbing up whatever they think might possibly bear on the issue.”
Downloading vast amounts of data to a thumb drive means that would-be whistleblowers are taking documents that have nothing to do with their case and that they have no right to: client lists, proprietary information, salary info, trade secrets, etc. That makes the whistleblower vulnerable to lawsuits by the company, and weakens their case.
As a general rule, Tycko says, “Take what you absolutely need and nothing more. If a government investigator or the lawyer or FBI agent or whoever you’re going to show this to, if what you’ve taken taken demonstrates illegal conduct, they will not worry about how you got it. [And the company] will not bring more attention to the fact by suing you.” (He stresses that the chances are not zero, though—some companies indiscriminately sue everyone.) HIPAA, for example, has a large exemption carved out for whistleblowers.
Consult with a lawyer.
You can do this at any stage of the process—Marshall recommends seeking out an attorney before you take any action so you can protect yourself from retaliation. If that moment has come and gone, then Tycko says, “If you’re at the point where you haven’t been able to fix the problem internally, and you’re being targeted [or fear retaliation], or you just want to do the right thing, you should consult with a lawyer.”
If you’re in the corporate world, you can start with Taxpayers Against Fraud and look for lawyers’ names. Tycko notes that whistleblower law is very niche—he estimates maybe 500 practitioners in the U.S.—so potential whistleblowers need to look nationally and concentrate their search in big cities. “Look for expertise, not locale.”
If you’re in government, both Marshall and Tycko recommend turning to the Government Accountability Project or the Project on Government Oversight and looking for advice and counsel there. Tycko wrote a brief guide to “qui tam” whistleblower cases—cases in which a worker discloses an employer’s unlawful conduct to the government and so becomes eligible to receive a reward that’s some fraction of the government’s recovery (think health care fraud)—so if that’s your situation, it’s worth a read. For everyone else, remember: Complain specifically, gather (not too much) evidence, stay off Facebook, and get a lawyer.
Author:
Leigh Anderson