The Failure of Expected Protections (Part 2)
With all these state protections, what results do whistleblowers
achieve? In cases of public policy exceptions
to the employment-at-will rule, it is impossible to say because there is no
central database (even within states) of the results from these cases and settlements
are typically hidden by nondisclosure agreements. The U.S. Department of Labor reports on
complaints it receives regarding about 17 federal statutes, but the outcomes
are not encouraging. Of the 26,421
complaints that resulted in determinations from 2006 through 2015, the DoL
figured that 24% of the outcomes were favorable to the complainants, including
settlements and referrals to different agencies.
The New Hampshire Department of Labor’s 2011-2013 Biennial
Report (the most recent available) on its Whistleblowers’ Protection Act activity
said that of 61 cases that were closed, just one was found valid[1]. The whistleblower success rate in New York is
about 21%[2],
including settlements.
California’s Department of Industrial Relations, which ignored
my minimum wage complaint involving HomeFirst and which oversees whistleblower
complaints, issues annual reports concerning the outcomes of all complaints
filed with it. About 85% of the cases
submitted to the DIR are settled or withdrawn before a decision is rendered,
which may not be surprising since the average time-to-decision is about two
years. Of cases that resulted in decisions,
just 17% of complaints were found valid, amounting to about 3% of the cases
submitted from 2006 through 2014[3].
These results were not what I expected when I began my
whistleblowing project. I was sure that
I would be vindicated, if not about each of the violations then certainly about
my termination. Corporations and some
writers, such as Sisella Bok[4],
begin with a suspicion that the whistleblower has impure motives; HomeFirst claimed
that of me. It appears that the legal
system works with that suspicion in mind.
Corporations that retaliate
against whistleblowers benefit from the difficulty in proving white-collar
crimes: three crucial determinants of a guilty finding – (a) intent to do harm
or willful negligence that caused harm; (b) a direct causal link between action
(or inaction) and harm; and (c) the time frame for the harmful activity – can
be difficult to establish[5]. For each of the HomeFirst issues that I
raised, management denied any intent to cause harm; it pointed to its
compliance system as proof of its honorable motives. Time frames were smudged as actions once
considered innocent were subsequently challenged as wrong, and actions initially
wrong were forgiven by authorities. If
improper actions were committed, the company claimed it was on its way to
repairing them.
Retaliation against the whistleblower must, nearly always,
be based on circumstantial evidence that is subjected to conflicting
interpretations. A whistle is blown, and
the whistleblower is fired. Directly proving
a causal connection is impossible for most whistleblowers. Facts are introduced or manufactured by the
company to justify its actions: the whistleblower was the wrongdoer. When evidence
is presented in the form of emails and private communications of the company
decision makers, it may be challenged as “unclean” and improperly obtained, as
my attorney considered the files I brought forward. Then the whistleblower is caught in a Catch-22
situation where having proof of the company’s malicious intent means that the
company is innocent.
In all but a few jurisdictions, resolution of a whistleblower’s
claim that retaliation occurred must resolved through the civil court
system. Seldom do authorities have the
power impose a binding decision on the parties.
As a result, most claims end in settlements, which the DoL, for one,
considers a successful outcome for the claimants. But I can attest that a settlement, even if
negotiated by one’s attorney, is not necessarily a successful outcome for the
whistleblower.
The results that become public are
the larger, more newsworthy qui tam suits
– federal cases in which the government joins in the whistleblower suit and settlements
are in the millions of dollars – and not the small complaints settled in secret,
dismissed, or simply abandoned after they dragged on for years. State regulations provide a framework for
whistleblower protection that mostly fails those who expect that right will win
in the end.
[4] Bok, Sisella. “Whistleblowing and Professional Responsibility.” New York University Education Quarterly 11.4
(1980): 2-10
[5] Friedrichs, David O. Trusted
Criminals: White Collar Crime in Contemporary Society. 3rd ed. Belmont, Cal.: Thomson
Higher Education. 2007
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