Blowing the Whistle – Practical Tips

Some whistleblower protections require that employees notify the employer before reporting certain issues to outside agencies . The federal employee protections enforced through the Department of Labor do not require following any chain of command. In these cases, you can choose to whom you will make reports. If you want to stay anonymous, you may want to consult a lawyer familiar with the agency you chose to receive your report, so that you know the answers to these questions:

What is the agency’s reputation for maintaining confidentiality?What are the laws that would protect you?

Many employees are fired before even blowing the whistle. Employers often fire the employee under the guise of some legitimate unrelated reason. It is sometimes possible to prove retaliation in these instances. The employee would have to show the employer knew they planned to come forward with information and fired them in response.

The decision about whether to reveal your protected activity is sometimes difficult, so employees often try to make anonymous reports of the wrongdoing they see at work. If you can make an anonymous report and never be discovered, then you would expect to avoid hostility. If you reveal your reporting to the boss, and the boss does not retaliate, or tries to retaliate and you win reinstatement, then you could continue to work with everyone knowing that the boss cannot fire you. The decision is a personal one.

You should consider these questions as you make your decision: 

How important is it to you to try to keep working there?What are your other options?

If the employer guesses wrong and retaliates against an employee who engaged in no protected activity, that employee might still be able to pursue a claim for retaliation. The protected activity only needs to exist in the mind of the employer to make the employer’s retaliation unlawful. However, in our experience, the employers usually guess right.

They can match information derived from the government investigation with a list of employees who:

Had that information, andAre known to have enough backbone to speak up about compliance issues.

In most workplaces, this list is unfortunately small.

After the report is made, the government agency might or might not contact the employer to investigate. In most cases, the government is under no duty to investigate. The government gets to pick and choose which issues to pursue. If they do pursue your report, the employer may begin to wonder who tipped off the government.

You might also consider that sometimes (hopefully rarely), people working in government disclose who tipped them off. Most agencies have rules against this, but some have open records laws that require disclosure.

Sometimes the employer makes a guess and starts to retaliate. If you complained anonymously, you might then have a problem proving that the employer knew or suspected that you had engaged in protected activity.

Start building your case as early as possible. If you are currently employed and plan to blow the whistle, document what you can in case anything goes awry. The burden is on the employer to prove retaliation, not on the employee to disprove it. Relevant evidence can be written or oral, but writing is always preferred. Even if you don’t end up in a courtroom, you need a credible case for the judge to consider approving a settlement in your favor. See workplacefairness.org for information on how to find an attorney that can help you build your case.

Gather and put in chronological order all of the documents that you can find concerning your employment–every pay stub, every memo, and every handwritten note. Try, within your company’s rules, to get copies of:

Performance evaluationsDisciplinary warnings or reprimandsLetters of thanks or praise (from managers, customers, or co-workers)Internal memosCompany bulletinsAttendance recordAny document stating the reason for your dismissalHandbooks, manuals, or other documents describing work rules, policies, and proceduresPension benefits and retirement plan informationDocuments related to your unemployment compensation claimCopies of work assignmentsOrganizational charts, diagrams, floor plans, etc.

Do not take documents or access information to which you have no right and are not entitled. If you are a union member, ask your union to assist in acquiring documents that are otherwise difficult to obtain, but to which you are legally entitled.

If you think co-workers or others observed your wrongful treatment, make a list of their names, addresses, and home telephone numbers, along with a summary of what you expect them to say–whether good or bad. The “bad” or unfriendly witnesses are especially important to discuss with your attorney so that he or she can evaluate the damage they might do to your case. Forewarned is forearmed.

Ask friendly witnesses to give you a written statement of anything they saw or heard in person regarding your situation as soon as you decide to take action against your employer. Memories fade over time. Make sure the witnesses state only the facts of which they are personally aware and give specific examples of what they have seen themselves or what they were told directly. General statements such as, “Everyone knew that the supervisor was out to get her,” are not helpful to your case. Get statements that specify the who, what, when, and where of the retaliatory action. If possible, have the written statement signed in front of a Notary Public.

The most useful witness statements are fact-intensive and unembellished by anger toward your employer or by friendship to you. They should be detailed enough so that whoever reads them–the court, an attorney, or an agency investigator–will see the “big picture.” If you know of employees who were mistreated in the same way you were, ask them for statements about the way they were treated. If your supervisor, for example, made insulting and demeaning remarks to you and other workers, get statements from the other co-workers that quote or paraphrase the remarks, give the dates on which they were made, and name any others who were present.

No matter what the outcome of your attempt to blow the whistle, you will be better off if you remain calm and only sound off to your family and friends–far from the work environment. Angry letters or outbursts make it easier for the company to believe they are justified in ignoring your complaints in the first place and make it more difficult for them to negotiate with you or your lawyer at a later date. No matter what happens to you in the workplace, go out with dignity. You can acquire a reputation as a problem employee from one emotion-driven tirade. Keep your head, and you can keep your pride even if you’re ultimately forced to close this chapter of your working life.

The name of the game at this stage is strategy. You want to win this war and not just the first battle. Therefore, you must consider what is likely to hurt your chances and what is likely to help. If there is a particular supervisor you are sure is on your side, or someone else in top management who is friendly and aware of your good record, you could request a private meeting to explain what you want to do to keep working productively and why the company needs you on its team.

Our friends at the Government Accountability Project suggest the following twelve survival strategies for those who want to blow the whistle wisely:

1. Before taking any irreversible steps, talk to your family of close friends about your decision to blow the whistle.

2. Be alert and discreetly attempt to learn of any other witnesses who are upset about the wrongdoing.

3. Before formally breaking ranks consider whether there is any reasonable way to work within the system by going to the first level of authority. If you do decide to break ranks, think carefully about whether you want to “go public” with your concerns or remain an anonymous source. Each strategy has implications: the decision depends on the quantity and quality of your evidence, your ability to camouflage your knowledge of key facts, the risks you are willing to assume, and your willingness to endure intense public scrutiny.

4. Develop a plan, such as strategically-timed release of information to government agencies, so that your employer is reacting to you, instead of vice-versa.

5. Maintain good relations with administration and support staff.

6. Before and after you blow the whistle, keep a careful record of events as they unfold. Try to construct a straightforward, factual log of the relevant activities and events on the job, keeping in mind that your employer will have access to your diary if there is a lawsuit.

7. Identify and copy all necessary supporting records before drawing any suspicion to your concerns.

8. Break the cycle of isolation: research, identify, and seek a support network of potential allies, such as elected officials, journalists, and activists. The solidarity of key constituencies can be more powerful than the bureaucracy you are challenging.

9. Invest the funds to obtain a legal opinion from a competent lawyer.

10. Always be on guard not to embellish your charges.

11. Engage in whistleblowing initiatives on your own time and with your own resources, not your employer’s.

12. Don’t wear your cynicism on your sleeve when working with the authorities.