Whistleblowers Are Safe

Early in my career, I had a boss who I’ll call Christopher. One day an employee came to me reporting that she was the target of sexual harassment so I took her to Christopher so that she could tell him what she had told me. She told Christopher and he was appropriately shocked and sympathetic for her. She expressed to him that she did not want to file a report, instead she wanted to be transferred to another department. She explained that her fear was rooted in having to work with someone she reported for misbehavior at work. She was afraid that others would look at her with disdain because her harasser was popular on campus, and maybe she would be fired because of friends he had in upper management. Christopher responded saying that she had nothing to worry about, according to him the “whistleblower” is the safest person in the whole equation. He explained to us something we had never heard before but that is now very relevant.

Allison Stranger, author of Whistleblowers: Honest in America from Washington to Trump, indicated the “World’s first whistleblower protection law” just seven months after the signing of the Declarations of Independence when 10 American sailors and  marines reported improper behavior by the Continental Navy’s most powerful man. The Whistleblower Protection Act of 1989 provides federal protection to employees who report the possible existence of an activity that violates laws, mismanagement, and waste of funds, abuse of power, or danger to the health and/or safety of others. In short, the Whistleblower Protection Act protects the complainant from retaliation for their disclosures. It wasn’t until 2011 that the law was sufficiently enforced to protect whistleblowers in all workplaces, however there are still cases of retaliation rolling through the legal process.

Brett Wingo, a Southern Company Engineer who blew the whistle on problems at the Kemper County power plant, is suing his former bosses for retaliation. He is seeking two times back pay, lost benefits, and compensatory and punitive damages and attorney’s fees. Wingo informed federal agencies of concerns about the feasibility, schedule, and safety of the Kemper County, Mississippi power plant project. In 2014, Wingo wrote to the U.S. Securities and Exchange Commission detailing his belief that Southern had engaged in fraudulent, material acts and practices. Manager after manager for Southern Company warned Mr. Wingo to drop the issue, threatening that he was ‘digging a hole’ that his career would be tossed in. The suit says that his February 2016 firing was in retaliation for sounding the alarm about issues at Kemper. The Occupational Safety and Health Administration (OSHA) sided with Wingo and ordered Southern to reinstate him.

In March 2018, the Home Depot in Escondido was assessed a $27.8 million fine for their illegal methods of disposing of hazardous waste. According to the Lawsuit, Home Depot “would regularly dispose of its hazardous materials (“hazmat”) including paint, lubricants, solvents, electronic parts, flammable substances, and other chemical waste by dumping them into public dumpsters headed to public landfills, instead of being properly processed for hazardous waste disposal.” 65-year-old paint department manager, James Girsch, the Whistleblower was subsequently fired from his position in the store. According to his suit, filed in November 2018, Home Depot Management singled him out and “violated Whistleblower Laws with acts of oppression, fraud, malice, defamation, and criminal activity in an attempt to silence his voice.” Home Depot management was served legal documents on December 4, 2018; Girsch was fired from Home Depot on December 21, 2018.

Whistleblowers usually endure a tremendous amount of abuse prior to reporting mainly because they do not want to deal with retribution. They don’t want to make things worse, so they pinch their noses and try to outlast their tormentor. Instead, they take more unplanned days off and make every effort to avoid the violator, and if that does not work, they report. A few rules to follow to ensure you are compliant with Whistleblower protection laws.

1.       Don’t break the rules, duh. Make sure that policies and procedures are compliant with local, state and federal laws as well as your contract… and make sure that your leaders have sufficient training and support.

2.       When violations are brought to you, investigate them. If an employee reports something to you that is hard to hear, look into it anyway and report back. If indeed, something is wrong, don’t blame the messenger, fix it and move on.

3.        Reassure the whistleblower that they are safe from retaliation from you, the rule breaker, or anyone on the behalf of anyone else, and remind them that any future misdeeds can be brought to you.

Way too often, what is reported is an intentional abuse of power by a popular leader. That leader will want a member of his or her team out and will mistreat that employee in an effort to make them leave. The employee will report the abuse to the senior leader and nothing will happen. Worse, the senior leader will side with the leader and things will get way worse. Federal law requires that these complaints are investigated, an unfortunate fact is, too many leaders don’t know they are violating the law when they don’t. The leader’s dereliction of duty exposes them and the organization to serious liability and compromises the reputations of everyone in it.

When a report is made, the worst thing you can do is retaliate against the complainant, the second worst thing you can do is nothing. The best move is to respond in a supportive way. It takes a lot of courage to make these reports, when someone makes one to you, take it seriously and look into it. If there is a violator on your team, even if you like them, deal with it. Your reaction sends a message to the entire team and protects you from litigation and liability. Further, when your people know they can talk to you, they will report more of what is going on and you will be a much more informed leader. Their safety builds trust, confidence, and security necessary for you to be a better leader so respond, respect, and protect whistleblowers and you will SOAR!

William A. Brown

December 1, 2019

https://www.history.com/news/whistleblowers-law-founding-fathers

https://www.dir.ca.gov/dlse/WhistleblowersNotice.pdf

https://www.times-advocate.com/articles/home-depot-whistleblower-sues-for-defamation-and-retaliation/

https://mississippitoday.org/2017/08/10/kemper-whistleblower-sues-southern-co-for-retaliation/

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