By Tom Devine, Legal Director, Government Accountability Project
Edited by Suzanne Shelley.
Like a referee blowing the whistle in the presence of a foul, the whistleblower in the corporate or federal arena believes he or she has credible evidence of wrongdoing that bears exposure. Such wrongdoing may be illegality or fraud, gross mismanagement or waste, or a specific danger to the health or safety of the public or the environment. Whistleblowers are almost always endorsed by politicians as champions of justice, but their message is not always welcomed by those challenged by the disclosure.
The decision to blow the whistle in the public sector is an intensely personal one, and brings into focus the conflict between loyalty to the employer and far-reaching consequences that could result from remaining silent. Clearly, any doubt about the alleged wrongdoings should be carefully examined. Public disclosure must be decided on a case-by-case basis, preferably with the advice of your attorney.
Despite our society's embrace of freedom of speech, those who have the courage to voice dissent often end up martyrs. When this happens, there are no winners: The dissenter may lose his or her career by taking on the system, and , by silencing the messenger, the organization often covers up what could be the first warning signal of a subsequent disaster. The result may also discourage others from speaking up about the problem.
Who takes these risks?
Whistleblowers cannot be stereotyped as either role models or vengeful, disgruntled employees. Motivation can range from the most altruistic to the most self serving. Some whistleblowers are conservative, others are liberal; some are braggarts, others self effacing; some are gregarious, others are painfully shy.
Their jobs range from maintenance positions to seats in high management. What they have in common is that they have learned something that they are unwilling to keep to themselves, and they have chosen to act on that knowledge.
Deciding whether or not to expose suspected fraud or wrongdoing at work is difficult, and brings to light a slate of seemingly contradictory values. We don't like cynical troublemakers and naysayers, but we also have contempt for busybodies, squealers and tattletales, we condemn just as strongly those who "don't want to get involved," claim to "see nothing," or look the other way when something wrong happens. And, while we believe in the individual's right to privacy, we simultaneously fight for the public's right to know.
The conflict brings up personal issues or loyalty and livelihood. Loyalty to one's family is an instinct as much as a duty; as such, we believe we shouldn't bite the hand that feeds our family by turning on our employers. However, few would disagree that we all have a duty of loyalty to the public trust, the law and our communities. That's the heart of our duty as good, patriotic citizens.
The responsibility of public disclosure is a thorny ethical question. If an employee has evidence of an employer's illegal or dangerous activities and does not take action, is he or she acting in complicity? To what extent does the silent employee bear some of the guilt? The responsibility of taking on the system is a grave one - the outcome is not guaranteed to rectify the situation, and the whistleblower may suffer serious personal consequences.
Timely soul searching is a prerequisite for a whistleblower's survival. A well-informed strategy has a chance of succeeding, but unplanned or self-indulgent dissent is often the path to professional suicide.
While it may be unnerving, publicizing evidence that you believe demonstrates fraudulent activity or ethical and safety violations at work may be one or your most spiritually enriching experiences, especially if there is clear harm to fellow workers or to the public that can be avoided by blowing the whistle. However, you must face and accept the heavy risks that come from exposing or challenging an established power structure, before you start to suffer the consequences.
Besides possibly losing your job without accomplishing anything, there is an emotional and mental price to pay. Lifetime friends may turn against you, and co-workers treat you as an outcast. If the community depends on the industry you're challenging )or its associated government money), neighbors may ostracize you or your family, for upsetting the proverbial apple cart.
You must be resolutely clear about your objectives. Anonymous, one-shot disclosures let you get something off your chest without following through, and they obviously minimize the risk of reprisal. A confidential disclosure to a regulatory agency or corporate hotline might be the right approach.
Remaining anonymous may offer some protection from retaliation, and it will prevent the accused from turning on you - a common tactic to divert the attention away from the alleged wrongdoing. By maintaining an insider's position, you can retain access to information and can remain an eyewitness to the ongoing activities of the organization. This is particularly important if the bureaucracy pursues a cover-up.
However, this clandestine approach can be treacherous. Your charges may uniquely identify you. More often than not, the job held by a technical professional provides a key proximity - perhaps the only vantage point - from which to have witnessed the alleged problem. Your seniority may also provide you with sole or recognizable access to the key implicating records.
Remaining anonymous may seem appealing, but a more-straightforward approach is almost always needed to be effective. The direct approach allows you to publicly refute any company denials, and it will allow you to work to expose ensuing cover-ups.
Keep in mind that you will face intense public scrutiny having challenged "the system," and you yourself may become the issue during a public disclosure. A retaliatory attack may attempt to expose any and all facets or your personal life that could be used to discredit you or damage your credibility as a witness. Are you prepared to live with the whole record - about yourself as well as those you are accusing - bared for public scrutiny?
Examine your motives. Are you clear about why you're sticking your neck out? If you are driven by revenge, or the need for recognition or fame, you should reconsider the decision. Every whistleblower will confirm that the mental anguish overwhelms any temporary ego boost of being "the hero."
The public has a very short attention span - today's headlines are tomorrow's fishwrap. But a bureaucracy never forgets. Long after the public has forgotten that you took on a campaign to challenge dangerous operating practices, your superiors and the system will remember the damage you have wrought.
Whistleblowers who can affect real changes are those who act on values and conscience. They have credible data and information. In defense of the public trust, sincere whistleblowers work to expose damaging practices, and they act with their heads as well as with their hearts. Under the circumstances, it is reassuring how often these people have been able to use their insider's perspective to affect real change.
Tom Devine is the Legal Director for
the Government Accountability Project
Make a list, check it twice
The following strategies represent the collective experience of many whistleblowers:
Consult your family. Before taking any irrevocable steps, talk to your family and close friends about your desire to blow the whistle. The stress of exposing your employer's alleged wrongdoing - and the possible fallout in terms of harassment or termination - often causes substantial family problems. The entire family will suffer any resulting hardships. If you choose to challenge the system without your family's knowledge and approval, you may lose them in the aftermath - a sacrifice certainly greater than any professional circumstances.
Try to work within the system before going public. Before breaking ranks, consider whether there is any reasonable way to work within the system to bring your concerns to management's attention. Surprise skirmishes are often put down as reckless or impetuous, and may threaten your credibility by calling your motives into question.
In writing, use a non-accusatory manner to articulate what is wrong and your position on the matter. You should voice your concerns to several levels of management, possibly even the company's Board of Directors. Your credibility will be better preserved if you work internally to affect change before involving outside parties.
Beware - sounding the alarm internally may trigger a coverup. If you disclose your concerns to company officials who are engaged in the alleged wrongdoing - especially serious misconduct - it may give them time to destroy evidence you will need to substantiate your claims in an investigation.
Despite the risks, if there is no record of your objection prior to a public disclosure, your motives may be perceived as sensational, rather than based on genuine concern to rectify the harmful practices. How and when to voice your concerns internally is a critical decision that must be made on a case-by-case basis, with the guidance of your attorney.
Keep your eyes and ears open, with discretion. Try to learn of others in the organization who are aware of the fraudulent, wasteful or unsafe activity. You must verify that you are seeing enough of the whole picture to make sure your suspicions are well founded. Through casual but strategic discussions with co-workers, you can determine whether your objections are well founded.
These colleagues, who may become important witnesses in the future, could confirm that the problem is more widespread than you know. Together with their knowledge and assistance, you may be able to piece together the whole story.
Develop a detailed record. Before and after you blow the whistle, it is critical that you keep a careful record of events as they unfold. Keeping sketchy or sporadic records of the activities in question, and any purported harassment, is one of the most common mistakes that whistleblowers make. The time you spend now to carefully document pertinent developments could be very valuable in any investigation or court proceedings. There are several good ways to do this:
Keep a diary. Any factual log of your work activities and what is happening around your workplace should be as straightforward as possible. Focus on the alleged wrongdoing and on your disclosure, and stick to the facts. Leave out speculation, personal opinion or animosity you may have toward the situation, your co-workers or management.
Such a diary need not be kept on a daily basis, but you must document in detail any events that relate to the suspected misdeeds. Note any and all forms of harassment you receive because of your objection to the activity in question. Each entry should be dated and initialed by you.
This is a critical investment in maintaining your credibility during the disclosure. Such legal evidence - impressions documented at the time of disputed events - may make the difference between winning and losing a future lawsuit. It's also an insurance policy against memory losses, and will help investigators to piece together significant facts and patterns.
Make a memorandum for record. When you need to make a permanent record of an important event or conversation, you should make a formal document. Place the title, "Memorandum for the Record," at the top and write down everything you can remember from the conversation or event. Then sign the memorandum, date it, and if possible have someone witness it.
If you feel that certain conversations or events might later be challenged as your word against someone else's, you should seal a copy of the formal memo in an envelope and mail it to yourself. Once it has been sent through the mail, the postal-canceled document should be stored, unopened, in your records. To prove your claim at a later date, the sealed envelope will show that you wrote the memorandum before the postmarked date.
Pinpoint and copy key records. You should identify and copy all necessary supporting records before drawing any suspicions to your objections. Once your accusations of potential waste or fraud become known, you may be perceived as a threat to the organization, and your access to sensitive data or information may be cut off.
Even if you plan to remain anonymous, you must have copies of all relevant documents, because once the problem is exposed, documents may be hidden or destroyed. If you are aware of, but cannot copy, certain items, make a list that you can share with an investigator or a court. This will let them know what records exist and where to go for them later.
It is very hard to wage a successful campaign against any wrongdoers without credible documentation to back up your claims. You must have enough evidence to give authorities probable cause to pursue an investigation.
Create a larger support circle. Successful whistleblowers are those who have communicated their message to the largest number of citizens who stand to benefit from the exposure. Those who don't find the support of the constituency usually fail.
Seek the help of specialists. Contact an organization of professionals that specializes in assisting whistleblowers. (See Finding An Attorney, below) There are only a few groups with this specific mission, but their primary role is to help individual dissenters, regardless of ideological or political agenda.
These groups can play an invaluable brokering role, in terms of helping you to channel your sensitive information to the best outlets, while minimizing the impact of personal or professional fallout. Single-issue or conventional public-interest groups, on the other hand, may use your information to advance their own agenda, instead of helping you to deal with the consequences of your actions.
Navigating the legal landscape
Choosing an attorney who is well versed in the thorny issues associated with whistleblowing is critical to the success of your disclosure campaign (see Finding An Attorney, below). Once challenged or exposed, many organizations respond with imposing legal counter attacks, threats, and even lawsuits against the dissenters.
Keeping up with an aggressive legal match is tremendously draining. It will monopolize your time, pull you away from the point of your dissent by keeping you on the defensive, and take you away from your other professional responsibilities.
Beware of an attorney who plans to keep certain evidence secret, for use later to drive up the possible settlement value of a lawsuit. Many negotiated settlements involve sealing the records, effectively shutting the public out. When this happens, what began as a principled initiative to rectify some wrongful practices turns into a business transaction, where you the whistleblower finalize the coverup - for a price.
Other well-intentioned but clumsy attorneys end up revealing their clients' evidence prematurely, allowing the employers to fortify their defense. Still others are intimidated by the legal staffs of corporations or large government agencies.
A patchwork of coverage
Legal coverage pertaining specifically to freedom in the workplace varies from country to country. Doctrines emerging in the U.S. to create and protect freedom of dissent in the workplace are among the most dynamic legal developments. The stakes are extremely high in terms of both organizational welfare, public policy, and personal justice.
Unfortunately, the law in the U.S. is an incoherent patchwork of protection. The limited rights granted to government workers under the U.S. constitution have been strongly reinforced for federal workers through the Whistleblower Protection Act of 1989, a statute passed unanimously by Congress.
For corporate employees, this situation is less clear. In some states they can sue for punitive damages, but the coverage is spotty and the legal standards inconsistent. A dozen environmental statutes have employee-protection clauses that theoretically permit whistleblowers who feel they lost their jobs because of the disclosure to be reinstated, following an administrative hearing.
But the legal ground rules are so poorly enforced and inconsistent that in the last seven years, employees have won only six cases under all statutes combined. Rather than pursue these administrative remedies, the trend has been for private law firms to pursue multi-million-dollar punitive-damage suits.
In the midst of years of legal wrangling, the principled reason for blowing the whistle can get lost in the shuffle. The prospect of "pot of gold" victories often encourages law firms to pursue these cases as possible bonanzas, using the evidence to threaten or sensationalize the issues to bring in more money through settlement or verdict.
Congress is considering legislation that would make the situation for private-sector employees more consistent by extending the Whistleblower Protection Act of 1989 to include corporate employees. Since statutory free-speech protection under the law would not provide punitive damages, the prospect of a large settlement would be removed from the equation. This may discourage whistleblowers whose motivations are self-serving or remunerative.
Progressive companies should support the drive for a modern, comprehensive law to protect whistleblowers in the corporate arena. The goal is not to encourage or reward dissent, merely to protect whistleblowers from unjust penalty or dismissal.
Protected by strong laws, conscientious employees will be more comfortable working within the system to voice their concerns and to work for change early on. An open and honest dialogue allows managers to address warning signals early, to rectify problems before they escalate into crises.
Blowing the whistle is a high-stakes game with a winner and a loser. By exposing fraudulent or unsafe practices in government or in industry, you can affect powerful change. The well-armed whistleblower has an organized plan and a keen knowledge of existing employee-protection laws. Despite any warnings or threats you receive, the right to blow the whistle - and to be protected in doing so - is the cornerstone of a free society.
Specializing attorneys can be found through whistleblower-support organizations, public-interest groups or the American Bar Association. When evaluating a prospective attorney, these pointers may help you to streamline the process: