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Educate Your Managers About Whistleblowers’ Rights

On Behalf of | Oct 23, 2019 | Employment Issues For Employers |

With a major whistleblower story in the news recently, now is a good time to educate your managers and supervisors about whistleblower protection laws. There are more than two dozen federal laws that protect whistleblowers in various situations, including the Whistleblower Protection Act, most anti-discrimination laws, the Sarbanes-Oxley Act (SOX), the Dodd-Frank Act and others.

While whistleblowers may not be protected in all situations, the available protections are quite broad, even considering only federal law. State laws can add additional protections.

Moreover, blowing the whistle is broadly defined. Generally, people qualify for whistleblower protection as long as they act in good faith, even if they turn out to be wrong. Also, participating in an investigation typically counts as protected activity.

To avoid running afoul of whistleblower protection laws, it’s a good idea to train executives, managers and supervisors to recognize whistleblowing and to do their best to respond to every instance of whistleblowing with:

  • Protection of the whistleblower’s anonymity, to the greatest extent possible
  • A fair, reasonable investigation of the complaint
  • Avoidance of any form of retaliation against the whistleblower

A few tips for handling a whistle-blowing complaint

Protecting a whistleblower’s anonymity can help avoid disruption in the workplace and may prevent co-workers from ostracizing or retaliating against the whistleblower. That said, it may be possible for co-workers to figure out who the whistleblower is. During your investigation, instruct witnesses and participants in the investigation to avoid identifying the whistleblower or others involved.

When considering a specific complaint, try to remain neutral about the source. Just because someone has a problematic history doesn’t mean they are making a false complaint. In many cases, your company has a legal duty to perform a fair and reasonable investigation of complaints. Failing to do so may result in liability, so it’s best to take every complaint seriously.

Be honest and as transparent as possible without compromising the whistleblower’s anonymity. This includes telling the whistleblower the outcome of the investigation to the extent possible without violating employees’ privacy rights.

As soon as possible during on-boarding and throughout an employee’s career, make clear that you won’t retaliate against whistleblowers. Unfortunately, retaliation is only too common, and fear of retaliation could send your whistleblower straight to a regulatory agency instead of to your HR office. This could prevent you from handling the matter confidentially and internally, instead putting you in the sites of a regulator.

It is therefore crucial to create a culture of non-retaliation. This begins with refusing to consider a whistleblower complaint to be a mark against the employee. It continues with ongoing employee communication, and it requires avoiding even the appearance that an employee was punished for blowing the whistle.