If you noticed a legal, health or safety violation on the job site, what would you do? Fortunately, most problems can be resolved internally. But when circumstances are dire, here's what you should know before becoming a whistleblower.
It is against the law to retaliate against workers who report legal, health or safety violations. As straightforward as that sounds, whistleblower protection is a complicated legal matter.
Suppose — and let’s hope it never happens — that someone in your facility committed a serious offense and you felt compelled to report it to the proper authorities. What would you do?
“Know your rights before you enter the lion’s den,” says Stephen Kohn, executive director of the National Whistleblowers Center, which has been defending workers since 1988.
There are about 60 federal whistleblower laws, 22 under OSHA alone, and 35 states have their own laws.
Some laws apply to municipal and other governmental employees, others do not. Private sector, state, municipal and tribal employees at water and wastewater treatment plants are covered by the Safe Drinking Water Act and the Federal Water Pollution Control Act. Both require filing a complaint with OSHA within 30 days of the retaliation (other laws have different timelines).
Use the system first
Most companies and agencies, of course, value workers’ concerns.
“The goal always is to make a difference without incurring the need for anti-retaliation rights,” says Tom Devine, legal director for the Government Accountability Project, which has been representing whistleblowers since 1977. “A lot of times, whistleblowers see things in isolation that appear to be misconduct, but are actually reasonable. We advise people to give the system a chance as problem-solvers trying to prevent trouble, rather than threats to create scandal.”
Kohn says most whistleblower cases start that way: An employee sees something and tells a supervisor.
“It’s really tied to the culture of a company and whether or not it’s willing to self-correct,” he says. “In my 30 years doing this, we see a lot of repeat companies that have lots of whistleblowers. Then you see major companies that have never had a whistleblower. If your perception is that it’s getting worked out, you may want to work within the system. If you get pushback, then you need to consider going outside.”
If you do, the first step is to contact an attorney.
“Learn what rights you have, and that will include to whom you can make a disclosure and be protected,” Kohn says. “It’s not that hard to do it right, but it’s extremely easy to do it wrong.”
Blowing the whistle
No one ever said being a whistleblower was easy. Devine warns, “If you have to rely on your legal rights, you’re in big trouble. It will be the most treacherous journey of that person’s professional life.”
A retaliation case, he says, requires a minimum five-figure legal bill and will take years.
“Whistleblowers have about a one in 10 chance of prevailing,” Devine adds. “If you do win, it’s not really functional to go back to work for a boss you just defeated in a lawsuit.”
That’s why it’s important to do things correctly. “So many whistleblowers do what they think is right, and that often has a disastrous consequence,” says Kohn. “They may leak confidential business information that is not protected, or they may go to the wrong office; there are so many pitfalls.”
When whistleblowing is done correctly, the laws can protect against retaliation, adds Kohn. A company is unlikely to take a chance of violating the law when faced with a whistleblower complaint that is well documented, filed properly and takes the steps needed to meet requirements of the applicable law.
“It’s an objective way to move your status from one that is completely vulnerable to one that has maximum protection,” says Kohn.
There are also reward laws that provide monetary payments if a whistleblower’s claim results in a successful enforcement action. Federal funds would have to be involved for the False Claims Act to apply, but 26 states also have laws covering the misuse of state and local funds.
GAP’s 335-page book, The Corporate Whistleblower’s Survival Guide, lists 13 tips to help you prepare:
- Consult your loved ones.
- Test the waters for support among your workplace peers.
- Before breaking ranks, consider working within the system.
- Always be on guard not to embellish your charges.
- Seek legal and other expert advice early.
- Stay on the offensive with a well-thought-out plan.
- Maintain good relations with administrative and support staff.
- Network off the job: Identify potential allies such as elected officials, journalists or activists with a proven track record.
- Keep an ongoing, detailed, contemporaneous record as you go.
- Identify and make an index of the titles and locations of all relevant documents before drawing any suspicion to your concerns; get advice from an experienced whistleblower lawyer.
- Engage in whistleblowing on your own time and with your own resources, not your employer's.
- Check for skeletons in your closet.
- Do not reveal your cynicism when working with the authorities.
The third edition of NWC’s book, The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right & Protecting Yourself, focuses on what Kohn has heard from whistleblowers: Sometimes, despite the best of intentions, whistleblowers make mistakes.
“I know they’ve already lost their case. You’ve got to blow the whistle the lawful way,” Kohn says.