When individuals discover potentially harmful or wrongful conduct on the part of an employer, some individuals will come forward with this information. Unfortunately, when whistleblowers disclose such information there is a risk their employer may retaliate against them. Recently, a new study by the Ethics Resource Center found that retaliation against whistleblowers is on the rise.
Whistleblower retaliation comes in many forms. Our attorney at Goldberg Kohn cites whistleblowers as often being overlooked for promotion, given inferior assignments, socially ostracized, or terminated. The study found that managers were more likely to experience retaliation for whistleblowing than lower-level employees were.
The new study has revealed some troubling trends. Over one quarter of employees who report to management and 40 percent of employees who use internal hotlines experience retaliation for whistleblowing activities. Overall, 22 percent of employees who engage in whistleblowing activities experienced retaliation in 2011. In 2009, only 15 percent of employees experienced retaliation.
There are numerous consequences to this retaliation. Employees who experience retaliation are over twice as likely to leave their companies within the next year as non-whistleblowing employees. Retaliation for whistleblowing also has a deterrent effect on other potential whistleblowers; the study revealed that fearing retaliation was the most common motive for not reporting misconduct.
Legal Protections for Whistleblowers
The First Amendment to the United States Constitution provides that “Congress shall make no law abridging the freedom of speech.” Private industry and even government agencies are not limited to encroaching upon an employee’s right to speak freely. This has led to a distinct lack of whistleblower protection in the United States.
Whistleblower Protection for Private Industry
There is some whistleblower protection for individuals employed in private industry. Whistleblower protection comes from reporting violations of specific statutes with provisions to protect whistleblowers. Statutes that possess whistleblower protections permit employees who are retaliated against to file complaints with the Occupational Safety and Health Administration. Protected activities include the initial complaint, providing testimony, and assisting the investigation.
There is no general right to whistleblower protection for private employees. Employees who blow the whistle on employers who engage in unethical or illegal behavior may not be protected if the wrongful conduct falls outside the statutes with specific protections.
For government employees, retaliation can be particularly difficult to avoid.
Whistleblower Protection for Government Employees
The Whistleblower Protection Act of 1989 was intended to protect employees of government agencies from retaliation and threats of retaliation if the employees report agency misconduct. Unfortunately, the United States Supreme Court has held that government employees have no right to First Amendment protections if the speech in question was directly related to their positions. Whistleblowing activities regarding activities specified in an individual’s job description must proceed through the government bureaucracy and to particular review boards. These review boards deny most of the claims.
Businesses need employees who understand the value of confidential and proprietary information. At the same time, society has an interest in being shielded from harmful conduct. Limiting whistleblower protections to violations of specific laws is one way to deal with these competing interests. This approach may not be sufficient. True whistleblower protection requires a culture of strong ethical principles and accountability. Since such companies are not usually the focus of whistleblower complaints in the first place, whistleblower retaliation may continue to rise in the future.
Georgina Clatworthy is a legal writer and a former law blog editor. She is currently a contributing writer for the Whistleblower attorneys at Goldberg Kohn. Their many years of experience at handling claims under the False Claims Act has provided them with the knowledge and resources necessary to help fight fraud against the government and protect their clients every step of the way.