A potential whistleblower need only run a quick Internet search to find many attorneys ready to take his or her case. Knowing this, employers need to be proactive: Any employer handbook or policy and procedures manual should include provisions aimed at educating all workers about the rights and obligations of whistleblowers.
The following provisions should clearly explain the employer’s expectations:
- Workers will promptly report any perceived illegal or unethical behavior. Consider reporting procedures that preserve anonymity, but specify that (a) anonymous whistleblowers must provide sufficient corroborating evidence to justify starting an investigation; (b) an investigation of unspecified wrongdoing or broad allegations can’t be undertaken without verifiable evidentiary support; and (c) because investigators will be unable to interview anonymous whistleblowers, it may be more difficult to evaluate the credibility of the allegations and, thus less likely to cause an investigation to be initiated.
- False reports won’t be tolerated. No report will be made by any worker who doesn’t have a reasonable belief that the employer is in violation or that the employer has placed its workers’ health or safety in jeopardy. The intentional filing of a false report is itself a basis for an adverse employment decision.
- Workers will follow grievance procedures. Any worker who believes that the employer is in violation or that the employer has placed its workers’ health or safety in jeopardy will follow the employer’s established grievance procedure.
- Whistleblowers can’t obtain evidence for which they do not have a right of access. Whistleblowers are “reporting parties,” not investigators. They’re not to act on their own in conducting any investigative activities, nor do they have a right to participate in any investigative activities other than as requested by investigators. Neither may they interfere with an investigation, nor withhold, destroy, or tamper with evidence, nor influence, coach, or intimidate witnesses.
- All participants in an investigation will adhere to admonitions and instructions from investigators. Investigators are independent and unbiased both in fact and appearance and have a duty of fairness, objectivity, thoroughness, ethical behavior, and observance of legal and professional standards.
- Whistleblowers are entitled to protected status. An employee is considered to be a whistleblower and is accorded all protections to which such status entitles the worker, from the moment a claim under the grievance procedure is initiated until the claim is resolved.
- Whistleblowers will receive confidentiality to the extent possible. Confidentiality will be maintained to the extent possible within the limitations of law and policy and the need to conduct a competent investigation. Caution whistleblowers that their identities, as well as that of those who are the subject of their report, may be revealed as necessary in the employer’s discretion to respond to the report. A whistleblower who self-discloses his or her identity can’t expect the employer to maintain such confidence.
- Retaliation against a whistleblower or any participant in an investigation won’t be tolerated. Whistleblowers have a right to protection from retaliation, but this right doesn’t extend to immunity for any complicity in the matters that are the subject of the allegations or an ensuing investigation. Any worker with whistleblower status will promptly initiate a new grievance for any incident of perceived retaliation.
- Whistleblowers won’t be stifled through a confidentiality agreement. The employer won’t muzzle a whistleblower or a witness in an investigation through a confidentiality agreement that prohibits or limits communication about the investigation to other people or only after pre-approval from the employer.
Employers should also educate supervisors as to the broad protection against retaliation provided to those who participate in the reporting of wrongdoing; carefully review performance evaluations, disciplinary action, and other actions taken against employees who have participated in the whistleblowing process to determine if there’s any retaliation. The Federal Bureau of Prisons just got snagged for retaliating against two whistleblowers by moving them to inappropriate office spaces.
And, as always, employers need to regularly monitor the workplace to ensure that their policies and procedures are carried out in practice.
For everything employers need to know about whistleblower issues, turn to Advising California Employers and Employees, chap 16. Also check out CEB’s program Whistleblower Law: Views from the Inside, available On Demand.
Other CEBblog™ posts you may find useful:
- The Cost of Blowing the Whistle
- Get Your Vacation Policy Right, and Then Relax!
- Action Plan for Handling Harassment Claims
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