Generally speaking whistleblowing includes the following:
A. Making good faith complaints to governmental officials about
violations of the law by your employer.
B. Testifying in a proceeding related to violations of the law by your employer.
C. Refusing to violate a law or regulation.
D. Opposing an illegal practice by your employer.
Attorney at Law
Blowing the whistle on illegal or unsafe corporate business practices is powerful, sometimes rewarding, but not always easy, and rarely without consequences. Preparation and knowledge are the key elements of a successful whistleblower claim. The purpose of this article is to provide you with practical and general guidelines for those who have decided to do what is right and risk possible retaliation.
Working Within The System
The first place for a whistleblower to start is within the system by making the employer aware of illegal and/or unsafe working conditions. This should be done in writing.
Rule Number 1 when blowing the whistle: Make sure your employer knows that you are the whistleblower. If the employer retaliates, it cannot claim that it did not know you were the whistleblower if you have let it be known from the beginning.
Rule Number 2 when blowing the whistle: Follow company policy first, if possible, safe and legal. While employers cannot legally discipline employees for protected whistleblowing, nothing prohibits employers from disciplining workers who fail to follow safe and legal work rules. Follow company policy for reporting these hazards, before taking more drastic actions by complaining to governmental authorities, to help avoid discipline.
Going Outside The Company
The boss may not listen to any suggestions or will not answer any questions because even he is not allowed to deviate from established corporate work methods. When making a complaint to the government, it is important to know which federal or state agency to which you should submit your complaint and the deadline by which you must file your complaint under applicable statutes of limitation. As we hear from the train car full of salesmen in The Music Man, “you gotta know the territory.”
There are more than 40 federal statutes that have employee whistleblower protections for complaints ranging from sexual harassment to environmental protection. More than 15 federal agencies handle different types of whistleblower cases. If your complaint involves whistleblowing concerning discrimination in the workplace on account of age, sex, race, religion or pregnancy, then your complaint should be made to the Federal Equal Employment Opportunity Commission. If your complaint involves discrimination for having made internal or governmental complaints concerning workplace safety, environmental damages or commercial vehicle safety, then you should file with Federal OSHA. If your complaint involves discrimination for whistleblowing over actions in violations of federal labor statutes, you should file with the National Labor Relations Board.
The time limits for filing complaints with the government concerning discrimination for having “blown the whistle” on your employer are relatively short. Some statutes of limitation provide a period of only 30 days for filing a whistleblower discrimination complaint with the appropriate agency. Once you become aware of the illegal discrimination against you, file with the appropriate agency immediately. If you have filed a grievance alleging you were discriminated against for whistleblowing, do not wait until the grievance process is completed before filing a complaint with the appropriate agency. If you wait, the statute of limitations may run out and your complaint may be barred.
As with internal whistleblowing it is important that the employer knows that you are the whistleblower when you go to the government. By making the employer aware of the complaint, you have eliminated a defense of ignorance should you be forced to bring a claim of retaliation. If you file a complaint with an agency alleging unsafe or illegal acts in the workplace, make the complaint in writing, entitle it “complaint” and send or fax a copy of the complaint to your boss. Send it certified mail so that you will have the proof that the employer has seen your complaint. If you fax it to the employer, make sure you obtain a copy of the fax confirmation report. Employers are notorious for having sudden cases of amnesia when you lack proof.
After you have blown the whistle on your employer’s unsafe or illegal practices, follow up with the agency with which you filed your complaint concerning the employer’s practices. The squeaky wheel gets the grease.
To Tape or Not to Tape
Rule Number 3 when blowing the whistle: A tape recorder is a whistleblower’s best friend. There are exceptions to this rule. Here is a link to a summary of laws listing those states permitting secret recording of conversations to which you are a part (one-party states) and also those states that require the consent of all parties to a conversation before you can record (two-party states): http://pimall.com/nais/n.tel.tape.law.html. The listing is deemed reliable but not guaranteed.
To some it may appear unseemly to advocate secret tape recordings. I can be kind and say that management officials sometimes have foggy recollection. A hidden tape recorder, used in those states where legally permitted, levels the playing field for the whistleblower.
One warning on this point is in order. Even in states where surreptitious recording of conversations is lawful, an employer may have a policy of disciplining anyone found to have secretly recorded conversations in the workplace.
Avoiding Traps for the Unwary
There are several traps for the unwary that must be avoided at all costs. Rule Number 4 when blowing the whistle: Do not lie to your employer. He may be secretly recording you. Lies to an employer have destroyed cases brought by employees who have been discharged for whistleblowing.
This leads us to Rule Number 5: Do not give your employer a legitimate reason to fire you. Make sure you come to work on time, hold your tongue with the boss, and otherwise be a model employee (if it is safe to do so) once you have blown the whistle.
When blowing the whistle or refusing an unsafe work assignment, state your case or the basis for your work refusal plainly to your employer, without passion or profanity.
Building A Case
The best whistleblower cases are those have been planned carefully. Sometimes the application of Rule Number 3 (a tape recorder is a whistleblower’s best friend) is impossible to follow due to legal constraints or corporate policy. As an alternative to tape recording, witnesses (other employees) are a good substitute. This leads to Rule Number 6 when blowing the whistle: Foster good relationships with co-workers because you may need them as witnesses. The best cases that I have handled for employees who have been disciplined for whistleblowing are those where other employees have testified in behalf of my clients. Other cases have been lost because my clients had no such witnesses.
It is also important to follow Rule Number 7: Keep your cool and do your job when it is safe and legal. Walking off the job can be construed as job abandonment. Losing your cool can be construed as insubordinate behavior. Whistleblowers need to be clear thinkers.
Documentation is of paramount importance when blowing the whistle on your employer. It is what you can prove, not what you believe, that wins cases. Rule Number 8: Keep evidence such as photographs, driver logs, calendars, notes, memos and newspaper articles concerning working conditions and discipline. If a tape recorder is a whistleblower’s best friend, then surely a camera is a whistleblower’s second-best friend. Photos can document unsafe working conditions, corporate notices on bulletin boards and employee records. Calendars and diaries can memorialize the dates when you complained about unsafe working conditions. Memos and notices issued by the employer can help you rebut corporate lies about your alleged failure to follow corporate policy or work methods. Whistleblowers should be packrats when it comes to work-related documents. You will never know when you might need an old logbook or calendar to prove a point or rebut an employer’s lie.
A Final Rule
Each whistleblower must find his or her own path through the mess that sometimes results from whistleblowing. The whistleblower has to balance loyalty to his employer (and sometimes to his co-workers) against the desire to “do what is right.” Some employees play it safe and will not rock the boat. Since this article was written for Convoy Dispatch, it is safe to assume that those who read this article will not bury their heads in the sand when there is an unsafe or illegal condition in the workplace, whether it is sexual harassment, an unsafe shop, or union corruption. However some work situations do not involve an immediate or clear violation of the law. In such cases, you should follow a final rule for whistleblowers: Use your knowledge, experience and instinct in choosing which work assignments you will refuse due to unsafe working conditions.
Paul O. Taylor is an attorney based in Burnsville, Minnesota. He can be reached at 651-454-5800 or through his website www.paultaylorlaw.com