Double-billing Fortune 500 clients, selling another company’s market research–just another day at the office for Ana, who didn’t approve of her market-research firm’s unethical business practices, but was too jaded by Corporate America to care, at least at first.
After a while, though, the business-as-unusual cheating took its toll, and Ana blew the whistle by phoning each of the firm’s clients.
Ana is a real person, but Ana isn’t her real name. Despite a few high-profile cases that make the newspapers, most employees who blow the whistle on their company’s wrongdoings try to remain anonymous because they need to work for a living and fear their employer will retaliate against them even if their accusations are valid. Whistle-blowing, after all, is the uneven tug-of-war between a company preserving its reputation and a paycheck-dependent employee doing what he or she believes is morally right.
“When an employee blows the whistle, employers react with a vengeance,” says John O’Connor, an attorney with Hubbard and O’Connor Ltd., a Chicago-based law firm specializing in employee rights and litigation. “It’s courageous to blow the whistle, but expect the worst. Employers will use any means available–legal or illegal–to attack the whistle-blower.”
There is no legislated protection for whistle-blowers except those exposing the bilking of the government or the fraudulent use of government funds. In those cases, employees can seek full protection under the federal False Claims Act and the Whistleblowers Reward and Protection Act of Illinois.
Every other case falls under common law and general state and federal employment laws. Because Illinois is an employment-at-will state–as is every state but Montana–fair employment laws offer little or no protection for retaliation against whistle-blowers.
Employment-at-will allows employers–with a few exceptions–to fire an employee whenever they want. So an employee who witnesses his or her company intentionally selling defective products, altering financial records or misappropriating funds must not only be confident in his or her accusations but be prepared for the consequences before airing the company’s dirty laundry to authorities, shareholders, clients, whistle-blower hot lines or the media.
And then the whistle-blower must be prepared to be harassed, demoted or even fired.
“It’s not easy to find people who have landed well on their feet. Whistle-blowing is a damaging act that disrupts the employee’s network of trust within the organization,” says Vivian Wiel, director of the Center for the Study of Ethics in the Professions at the Illinois Institute of Technology in Chicago. “It’s prudent to expect to leave the company after you whistle-blow, even if your accusations are valid.”
Under state and federal laws, the cloak of anonymity only guarantees protection when reporting minimum wage abuses to the Illinois Department of Labor, wage issues to the U.S. Department of Labor, and health and safety hazards to the Occupational Safety and Health Administration.
“Under OSHA law, employees have the right to complain, whether or not it’s just a misunderstanding or a serious situation,” says John Rizzo, discrimination program manager for the Chicago-area region of OSHA, a U.S. Department of Labor division. If OSHA proves the employer has retaliated against the employee for a legitimate complaint, it will seek to recover an employee’s lost wages and benefits or job reinstatement.
“The majority of people who were fired for a legitimate complaint don’t really want reinstatement,” says Rizzo. “They realize it will be a hostile environment when they return to work, so they just want their lost wages back.”
Whistle-blowing is not something to be undertaken rashly, after a bad day at work or a quarrel with the boss.
And you’ve got to be fair to your company. Experts say employees should carefully weigh their motives before publicly or anonymously reporting alleged illegal activities: Are you revealing an isolated incident that management didn’t know about and would have wanted to respond to and correct? Or is it the way of doing business endorsed by management?
“You should only whistle-blow when observing serious wrongdoing,” says Wiel, the IIT ethicist. “Having careful documentation is critical for being believed and protecting yourself.”
Wiel says each case is different, but typically whistle-blowers aren’t disgruntled workers and do have a legitimate claim.
“The decision should be based on principle more than revenge,” adds O’Connor. “It’s not a quick buck or an easy road. You have to be confident about your claim.”
According to the Illinois office of the U.S. Department of Labor’s Wage and Hour division, about 95 percent of its anonymous and named complaints are valid. “Oftentimes, someone’s complaint is motivated by anger, but the allegations are still true,” says Henry Rodriguez, district director of the Central and Southern Illinois’ Wage and Hour division. “Basically, if the employer had not yelled at or insulted the employee, the employee wouldn’t have made the phone call to us.”
Ana agrees. “I just wanted to collect a paycheck, so I ignored the company’s illegal practices for a long time. But when we weren’t paid on time that spurred me to speak out. I know I did the right thing, and everything I exposed was true.”
Helen, who also wishes to remain anonymous, worked as a social worker in a New York welfare agency and noticed records were being altered to back up insurance claims. She began taking notes, then showed her boss the documentation. Helen quickly learned that even internal whistle-blowing without the help of a lawyer or government agency has its consequences. Her office was ransacked, her car inexplicably was damaged in the company parking lot and co-workers began taunting her. In fear, she transferred to a different division.
Companies that feel threatened by a whistle-blower have been known to do underhanded things to the whistle-blower to preserve their reputations.
“Companies will go to great lengths to smear the employee in the industry,” says O’Connor. “They will attack your credentials legally and illegally. Companies could say you’re dishonest or a drug addict; human resources could alter your personnel record and write negative things about you that aren’t true.”
O’Connor says you shouldn’t be completely discouraged from publicly whistle-blowing, but heed some advice on how to protect yourself:
– Obtain a copy of your personnel file. Under Illinois law, any current or former employee is entitled to a copy of the file. If you have a good employee record, says O’Connor, and later the company says you were a poor worker, then that shows retaliation, which strengthens your case.
– Get references in writing from your supervisor. If he or she later says you were a problem worker, it also shows retaliation.
– Consider whether your hands are clean. Workers who have participated in a company’s illegal activities must bear in mind that they may be blowing the whistle on themselves and could be held responsible to some extent.
If you’ve done your homework and are clean, you may be able to file a defamation suit if you learn during interviews for a new job that your old company has wrongfully blacklisted you as a drug addict or a thief, O’Connor says.
Ana, who quit her company shortly after she blew the whistle, believes the company eventually folded because clients, who didn’t reveal their source, canceled projects. “Now, I’m more worried about my current boss than my former boss,” says Ana. “I don’t want him to learn that I was a whistle-blower. He might become suspicious of me for no reason.”
Even though the troublemaker stigma that is attached to being a whistle-blower continues to follow them, both Ana and Helen are proud of what they did because it was morally the right thing to do.
“It’s unfair that I’m the one feeling awkward when I didn’t do anything wrong,” says Ana. “But if I had to, I’d blow the whistle all over again.”
