The Whistle Has Been Blown: Now What?September 7, 2012 – Articles
As seen in the West Virginia Chamber’s Human Resources Journal.
America was first introduced to the plight of the “whistleblower” over 40 years ago, after Ralph Nader published his book Unsafe at Any Speed and thereafter was placed under surveillance and had his credibility and character publicly assailed by General Motors. After A. Ernest Fitzgerald exposed vast cost overruns by the U.S. Department of Defense and was summarily terminated from his employment in 1972, Congress charged to his defense and the public and media responded with outrage. The whistleblower as underdog in the public perception has since been ensured through cinematic portrayals of Frank Serpico, Karen Silkwood and Jeffrey Wigand as noble, courageous and sympathetic characters to be admired by all but the malicious evildoers around them.
Employers now face a large number of state and federal whistleblower statutes, as well as common law employment theories designed to protect those who internally or publicly expose wrongdoing in the workplace. Some statutes, such as Sarbanes-Oxley, require covered entities to establish procedures for employees to file complaints, as well as those intended to protect their confidentiality.
In truth, most employers welcome sincere complaints of misconduct. If an employee is sexually harassing others, or is stealing from the company till, an employer should warmly invite the reporting of that information. Indeed, it probably can be said that most whistleblowers act responsibly when initiating complaints. Some do so calmly, while others are justifiably angry and upset because of the circumstances in which they find themselves. Still others are aggressive or abusive, dishonest or intentionally misleading in presenting their versions of the facts, or deliberately withhold information to protect co-workers or others. Complainants sometimes expect results that are neither feasible nor proper, or favored treatment to which they are not entitled, or at the end of an investigation are unwilling to accept reasoned and fully supported decisions.
Much has been written on substantive complaint procedures; i.e., whom to interview, what questions to ask, how to ask them, etc. The tougher issue, and the genesis of much litigation, lies in how an employer treats a whistleblower after a complaint or report of inappropriate conduct has been initiated.
How, then, does an employer implement complaint procedures that will protect the interests and rights of whistleblowers, and at the same time minimize unreasonable or inappropriate complainant conduct? Here are some basic rules:
- Ensure fair treatment of all involved parties. Above all, employers must ensure that the whistleblower, the alleged wrongdoer, supervisory employees who may be involved, and all other witnesses are treated in the same manner—with respect and due deference to the information they share. Those persons conducting the investigation, and those ultimately involved in any decision-making process, must always demonstrate impartiality and professionalism.
- Concentrate the investigation not on the complainant, but on the alleged conduct. In any investigation, it is easy to become caught up in the personality, character or employment history of the complaining party, and thus lose focus on the conduct at the center of the inquiry. A complainant might engage in behaviors during the investigation that can be viewed as unreasonable, whether born of anger or frustration, dissatisfaction with the process, or a sense of justice or moral outcome, which have no real bearing on the veracity of the complaint.
That is not to say that a complainant’s behavior or demeanor should be ignored entirely. He or she might have ulterior motives, seeking job protection within the security of a whistleblower role or initiating the complaint in order to harass or intimidate the accused co-worker or supervisor. Behaviors viewed as inappropriate may also relate to mental health issues.
The reality is that unreasonable conduct by a complainant is often unavoidable. It is the investigator’s role to sort through these behaviors to determine if and how they might play into the final determination, without letting them misdirect the focus of the inquiry from the alleged misconduct. Employers should therefore ensure that the human resource professionals or others conducting an investigation have the training and support needed to circumvent the natural tendency to avoid difficult interactions or make snap judgments, and to assign proper weight to complainant behavior while maintaining focus on the key issues.
- Assert control of the investigation. Once a complainant initiates a report of alleged misconduct, the employer must assert and exercise control of the process at the outset. It should be made clear to a whistleblower that the question of whether the complaint will be investigated or declined, who will be assigned to conduct the investigation, the resources and methodology that will be assigned to it, and its outcome will be determined exclusively by the management or human resource professionals involved, in accordance with established procedure.
- Form and manage the complainant’s expectations. In most instances, a complaint by a whistleblower will be his or her initial foray into the process. As a result, complainants often possess unreasonable expectations about what might occur, from how their complaint will be handled to what its outcome may be. Many complainants believe they will have a say in what disciplinary action might be taken against an offending party, or that they will be entitled to a transfer, promotion, or other “compensation” if the complaint is found to have merit.
Companies should therefore take steps from the beginning to manage the complainant’s expectations. Communicate clearly and firmly, in a manner appropriate to the particular investigation, providing a clear picture of the investigator’s role and the complaint handling process. Explain the respective rights of the complainant, the accused, any witnesses who might be involved, and the company. Ask what the whistleblower’s expectations are, and what they hope to achieve, so as to ensure an early and accurate understanding of what the company can and cannot do.
- Demand complainant respect and cooperation. It is not the rare case that a whistleblower will initiate a report of misconduct, only to back away from willing cooperation once the investigative process commences. Make it clear to complainants that they will be expected to demonstrate respect for, and cooperate with, the investigator as a requirement to continuation and completion of the investigation.
- Maintain contact with the whistleblower throughout the investigation. It is helpful to maintain personal or telephone contact with a complainant throughout the investigation. Keep him or her informed of the progress of the investigation, and avoid unnecessary delays where possible. If delays do occur, communicate with the complainant and explain the reasons for it. When appropriate, clarify or confirm the issues at the heart of the complaint.
- Clearly communicate the company’s decision and the reasoning behind it. In those instances where the final decision results in dismissal of a complaint in whole or in part, the whistleblower will almost certainly be disappointed and angry. Explain clearly the company’s reasons for the decision. It is unnecessary to be contrite or apologetic, but the message should be delivered with a professional and even sympathetic tone.
- Ensure the absence of retaliation by management or co-workers. Perhaps not surprisingly, persons rightly or wrongly accused of misconduct and related management employees often feel deeply threatened by whistleblowers. Case law is replete with instances in which complaining employees have been subjected to ostracism, harassment, threats, punitive job actions, psychiatric referrals, and termination of employment. Such retaliation can easily evolve into “constructive discharge” claims, which result when an employee has been forced to resign by the improper actions of an employer, or claims of “retaliatory discharge” when an employee is wrongly fired for engaging in protected whistleblower conduct. Increasing numbers of such cases are resulting in multi-million dollar verdicts.
Ensure that company policy clearly articulates management’s expectations in combating any and all forms of retaliation, which also is the most common deterrent to internal reporting in the first instance. Emphasize that retaliation in any form is strictly prohibited and must be reported immediately. Most importantly, make certain that policy is followed and enforced.
Obviously, each whistleblower will have a unique personality, character, intelligence and motive. The claims asserted will vary greatly in terms of nature, severity and complexity. These rules will have greater or lesser application depending on the particular circumstance, but in all instances should serve as an aid to an employer’s efforts to conduct a full, impartial and efficient investigation while simultaneously maintaining control of the process and helping to minimize the prospects of attack through subsequent litigation.