A New Whistleblower Ethic (Part 2)

A New Whistleblower Ethic (Part 2)

The old ethics of whistleblowing, as expressed by de George[1] and others, was formulated in the 1980s as whistleblowing grew to become a phenomenon.  The realities that whistleblowers have experienced over the past three decades call for a new whistleblower ethic.

A new ethic must first relate to all whistleblowers – the big-time players like Snowden, Ellsberg, and others not quite as famous as well as the ordinary employees who report organizational wrongdoing.  It does not limit itself to serious and considerable wrongs, as de George insists, but considers the million or more organizational issues and wrongs reported in the U.S. each year.

Some states, like New York, continue to limit whistleblower protection to those who disclose substantial threats to the public; some, like Louisiana, require that the wrongs disclosed be actual, not suspected, violations of law.  Some organizations, like the Government Accountability Project, focus on violations that interest media and the public on a grand scale[2].  But whistleblower complaints range from the very serious to the far less so.  

HomeFirst’s violation of the food handler card requirement, for example, was not major, but I reported it.  Others have reported a failure to report traffic violations, preferences in job hiring decisions, having to sandbag a supervisor’s house before a storm, and many other wrongs that win little public attention.  I contend that the human impact of these million or more small-time disclosures (plus the many wrongs not disclosed) each year is as significant that of the few high dollar qui tam suits that catch the public eye.

Second, the new ethic accepts that whistleblowers are not always nice or even honorable people.  It is possible that their former employers’ complaints[3] about them are correct in many cases – they can be disgruntled, impolite, disrespectful people who committed wrongs themselves and claim to be whistleblowers only because they hope to be paid off.  They may be misfits of various sorts, and some have mental health issues.  They may make mistakes in their jobs, and they may hope to harm the organization (or someone in the organization).  Much of this may be true, but it cannot distract us from honestly evaluating their allegations.

The public likes its whistleblowers to be saints and heroes[4], but most are ordinary humans who face a difficult decision.  This new ethic places more, not less, pressure on observers of wrongdoing by making the action available to everyone.  We cannot excuse ourselves from decision-making simply because the wrong is small and we are not great.

Another consequence is that every organizational wrong – take the VW emissions fraud, the killing of innocent blacks by police, sex and age discrimination in tech companies, FIFA, or any that you like – is witnessed by numerous insiders who have the opportunity to become whistleblowers in one fashion or another.  That most do not reveal the wrongs neither excuses them nor elevates those who do.

A third element of the new ethic follows from the history of retaliations by organizations: whistleblowers need not play fair and are not limited in their tactics. 

-          Those who disclose wrongs cannot count on being treated fairly by their employers, by enforcement agencies, or by the media.  As a result, they have no obligation to comply with rules of engagement promoted by those who will attack them.

-          Unrestricted by established rules for making their disclosures, whistleblowers may reveal wrongs without warning.  They may preemptively disclose them to enforcement agencies, possibly making them eligible for limited protection against retaliation, or to media, possibly exposing them to punishment by the wrongdoer if discovered.

-          They may gather whatever information they seek to prove their claim, taking care to avoid punishment that could come with discovery by the wrongdoer.

-          They may start their disclosures and end them whenever they choose and for whatever reasons they choose.  It is the whistleblowers who are in charge of their disclosures, and not the wrongdoers or those who claim to be ethicists. 

-          They may choose to conceal a wrong – or to discontinue their disclosure – because they judge the circumstances too dangerous for them and their families, because they are fearful.  If they do not disclose a wrong as they could have done, they will fail themselves, but they can recover on another occasion.  Whistleblowers do not need to be perfect all the time; they do not need to be saints or victims.

A fourth element admits opposition to power as a justification for whistleblowing that is no less valid than high ethics and morality.  When the whistleblower makes her disclosure, she stands up for herself; she states that her existence is as valuable as that of the organization that opposes her.  Whistleblowing is, first of all, an existential act. 

In the view of this ethic, whistleblowing is not primarily a moral act although morality may be used in justification.  It is not the result of a cost-benefit analysis by the whistleblower although the costs may be summed up after the fact and the personal and social benefits may be identified in time.  It is not fundamentally a prosocial act although it may benefit segments of society.  Instead, whistleblowing is the act of an individual against power that is situated in an organization, its managers, and its allies.

Morality should be removed from whistleblowing because corporate life involves transactions, not moral relationships.  One may follow her passion into a profession, but passion for an employer will be reciprocated only as long as she sustains the organization’s profit objectives.  She may be fired for any reason or no reason at all.  The witness to a wrong may choose to ask a superior about it, she may report it to someone outside the organization, or she may sit on it for a while.  The decision is hers to make.

The decision to blow the whistle wells primarily from a frustration at having witnessed too much for too long – in one organization or many, at the hands of one manager or many.  It is like a kettle heated until it blows.  The decision puts into action an emotion that cries out “I’ve had enough.”

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[1] First in de George, Richard T.  “Ethical Responsibilities of Engineers in Large Organizations: The Pinto Case.”  Business and Professional Ethics 1.1 (1981): 1-14 and later in De George, Richard T.  Business Ethics.  6^th edition.  Upper Saddle River, NJ: Pearson Education.  2006

[2] Hertsgaard, Mark.  Bravehearts: Whistle-Blowing in the Age of Snowden.  New York: Hot Books. 2016

[3] A selection of recent employer complaints about whistleblowers is found here.

[4] Heumann, Milton, Al Friedes, David Redlawsk, Lance Cassak, and Aniket Kesari.  “Public Perceptions of Whistleblowing.” Public integrity 18 (2015): 6-24

A New Whistleblower Ethic (Part 1)

A New Whistleblower Ethic (Part 1)

For years after her decision to disclose a wrongdoing, the whistleblower will wrestle with the question whether she should have made her disclosures for reasons beyond the practical considerations of financial and emotional costs.  Debate over whether whistleblowers are heroes or villains points to the question of the ethics of whistleblowing.

The existing whistleblower ethic constrains whistleblowing because it violates an employee’s duty of loyalty to her employer and it might hurt the organization and her colleagues[1].  Famously, Richard T. de George[2] advised that external whistleblowing is morally permissible (but not required) if:

1.       The organization will seriously harm its employees or the public

2.       The observer of the wrongdoing has reported it to her supervisor

3.       If the supervisor failed to act, the observer has exhausted all internal reporting options, including notifying the board of directors

After she has taken those three steps, she becomes morally obligated to report the matter externally if:

4.       She has documented evidence that would convince an objective person that the wrong is serious danger to the public

5.       She has good reason to believe that going public will lead to the necessary changes and will be worth the risk of retaliation.

I propose that de George’s initial assumption of loyalty to the organization is faulty.  I contend that the organization’s at-will employment policy, its retaliations against dissenters, and its wrongdoings destroyed any bonds of loyalty that might have existed before the whistleblower was thrown into her project.

Whether company loyalty is deserved as de George believes or doubted as others contend[3], different loyalties and higher duties can inspire the whistleblower – including the company’s mission, the community or public good, family, professional standards, and ethical or religious principles[4].  But just as philosophical reasoning follows, rather than leads, our decisions[5], appeals to duty, such as to family, can be cited to discourage whistleblowing or, in the case of professional values, to encourage it. 

I suggest that possible harm to the organization should not affect the whistleblower’s calculations.  In the history of whistleblowing, firms that have been hurt significantly by whistleblowing are far outnumbered by those that escaped penalty entirely or that settled suits with modest fines and the denial of any guilt.  If a firm does cease to exist following a whistleblower’s actions, its legitimate business activities will be taken up by competitors, illegitimate activities will be discontinued as they should be, and employees will move to other firms as they probably should have done earlier.  In the case of a nonprofit like HomeFirst, financial failure would mean only the transfer of contracts, assets, and employees to other nonprofits with little real disruption to the community.

De George limits ethical whistleblowing to behavior that causes serious and considerable harm, but that restriction gives too much room to corporations that claim their wrongs were not serious at all.  Too often a wrong – a theft, an act of sexual harassment, a lie to the public – can seem minor in itself but is part of a pattern of wrongdoing with broader effects. 

One example: the robo-signings and irresponsible credit verifications that Bank of America and other banks claimed were actions limited to a few individuals or offices although together they contributed to the 2007 financial crisis[6].  Another: Volkswagen’s emissions test fraud was the product of many bureaucratic decisions made in offices around the world but now appear to have been supported by the company’s senior management[7].  HomeFirst contended that the wrongs I alleged were minor or not even real, yet they composed a pattern of greater concern.

De George calls on the whistleblower to work her way through her chain of command, giving superiors adequate opportunity to fix the problem, as do some state laws[8].  The history of whistleblowing has made clear the painful consequences of following his advice.  The retaliations come in many forms, many of which are difficult or impossible to prove, leaving the whistleblower defenseless and the wrongdoer unpunished.  By identifying problems, the whistleblower shows herself to be an untrustworthy employee; she seeds doubts about her reliability in concealing other misdeeds and her ability to be a team player.  Once she suggests that something is wrong – not inefficient or unprofitable, but wrong – she identifies herself has having standards potentially at odds with the organization’s.

De George’s moral expectation that the whistleblower will stand up if she has clear, convincing evidence seems commonsensical.  If you have good, solid evidence, you should share it with authorities.  But evidence is seldom as clear and convincing as it initially seems to the whistleblower.  Wrongdoers will resist the introduction of evidence on grounds of confidentiality.  Even after it is presented, evidence is subject to conflicting interpretations, or it is contested with conflicting evidence.  The evaluation of evidence is necessarily subject to personal and politically-influenced biases, which in history have disadvantaged whistleblowers[9].

Nearly every whistleblower begins with the belief that her disclosure will begin a process of correction in the organization.  But whistleblowers are too often disappointed.  In media accounts, whistleblower successes are those where the employee receives some compensation for the retaliation she suffered.  Correction of the wrongdoing is seldom discussed, and the organization seldom admits to having done wrong even if a penalty is paid.  Of the ten issues that I raised at HomeFirst (the eight alleged violations and the failures to repay the City of San Jose and HUD), only two resulted in minor changes in company behavior after more than two years.

The federal and state protections offered to whistleblowers intensifies the moral obligation, in de George’s view, for observers to disclose wrongs.  The protections, though, are rarely effective.  A potential whistleblower cannot know she will be protected from the consequences of her whistleblowing any more than she can know that her whistleblowing will do any good.  It is far easier for the ethicist on the sidelines to claim that a person is morally required to make a disclosure than for the whistleblower herself to know what she should do.

The existing ethical guidelines for those who consider whistleblowing seem to me grossly out of touch with the reality faced by whistleblowers.  Even if advice is ambiguous or suspect, the witness must still choose for herself what action to take[10].  In response to that dilemma, I suggest that a new whistleblowing ethic is needed.

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[1] Hoffman, Michael W. and Mark S. Schwartz.  “The Morality of Whistleblowing: A Commentary on Richard T. De George.”  Journal of Business Ethics 127 (2015):771-781

[2] De George, Richard T.  Business Ethics.  6^th edition.  Upper Saddle River, NJ: Pearson Education.  2006

[3] For example, Duska, Ronald. “Whistleblowing and Employee Loyalty.” In Contemporary Issues in Business Ethics. DesJardins, Joseph R. and John J. McCall (eds.) Belmont, California: Wadsworth Publishing Company. 1985.  And Larmer, Robert A. “Whistleblowing and Employee Loyalty.” Journal of Business Ethics. 11.2 (Feb 1992): 125-128

[4] Ewin, R.E. “Corporate Loyalty: Its Objects and Its Grounds.” Journal of Business Ethics 12 (1993): 387-396.  Johnson, Roberta Ann. Whistleblowing: When It Works and Why. Boulder: Lynne Rienner Publishers. 2003

[5] Knobe, Joshua, Wesley Buckwalter, Shaun Nichols, Philip Robbins, Hagop Sarkissian and Tamler Sommers. “Experimental Philosophy.”  Annual Review of Psychology 63 (2012): 81-99.  Alexander, Joshua. Experimental Philosophy: an Introduction. Cambridge UK: Polity. 2012

[6] Weise, Karen. “Mortgage Fraud Whistle-Blower Lynn Szymoniak Exposed Robosigning’s Sins.” Bloomberg News, September 12, 2013.

[7] Ewing, Jack.  “Volkswagen Says 11 Million Cars Worldwide Are Affected in Diesel Deception.”  New York Times.  September 22, 2015.  Ewing, Jack, and Hiroko Tabuchi.  “Volkswagen Scandal Reaches All the Way to the Top, Lawsuits Say.”  New York Times. July 19, 2016.

[8] For example, Florida, Indiana, Louisiana, New Hampshire, and New York.  In addition, the State of California investigator seemed disturbed that I had reported problems without letting HomeFirst take care of them.

[9] Moberly, Richard. “Sarbanes-Oxley’s Whistleblower Provisions: Ten Years Later.” South Carolina Law Review, volume 64, number 1, Autumn 2012, p. 2-54. 

[10] Bouville, Mathieu.  “Whistle-blowing and morality.”  Journal of Business Ethics.  81.3 (September 2008): 579-585

What Makes Someone a Whistleblower?

What Makes Someone a Whistleblower?

The whistleblower is a curious character: in his most publicized incarnations he is set on a pedestal and pelted with abuse.  Why does someone take on such a role?  Over the past three decades, social scientists have developed and tested a wide variety of sometimes conflicting explanations for why someone decides to blow the whistle after witnessing a wrong.

Some possible explanations are specific to the individual:

-          Whistleblowers tend to have good job performance reviews, to be more highly educated, to hold higher level positions, and to score higher on tests of moral reasoning[1] (although some found otherwise[2])

-          But no demographic variables, such as gender and age, are significant predictors of whistleblowing[3]

-          Nor is job satisfaction related to whistleblowing[4]

-          Whistleblowers tend to show more individual initiative and to generally have a good mood (“positive affectivity”)[5]

-          Courage and integrity can encourage whistleblowing in the face of wrongs[6]

-          Some people think that whistleblowers have a broader sense of empathy than average person; they are guided by sense of morality they can’t put on shelf; and their morality doesn’t change with circumstances[7]

-          But ethical beliefs are not strong indicators of reporting[8]

The nature of the wrong can affect whether an observer chooses to blow the whistle on wrongdoers:

-          Serious violations are more likely to elicit whistleblowing responses[9]

-          The type of wrongdoing may affect willingness to blow whistle – for example, legal violations are more likely to be disclosed than theft[10]

-          Whistleblowing can result from an accumulation of outrageous misdeeds[11]

Individuals follow any of a number of decision processes before becoming whistleblowers:

-          They might conduct reasoned cost-benefit analyses[12], where benefits include things like financial rewards, praise from others, and enhanced self-esteem

-          They might seek changes in organizational policies as “policy entrepreneurs”[13]

-          They might act based on prosocial motivations to benefit others[14]

-          They might want those who are affected to know about the wrong[15]

-          Some people argue that when loyalty to the organization is no longer required, whistleblowing is not just permissible but expected when a company is harming society[16]

-          While most individuals think that they would resist directions to do wrong and would become whistleblowers if they observe wrongdoing, experiments strongly contradict those predictions[17]

-          Rather than reasoned weighing of pros and cons to whistleblowing, moral compulsion could be their driving force[18]

-          Whistleblowers may find themselves faced by a “choiceless choice”[19] – a lifetime of experiences, mentors, and reflections leads them to think that their only real choice is to blow the whistle

-          Despite all the reasons for remaining silent, they are dominated by a “moral stubbornness”:  they cannot choose to remain silent; their consciences allow them no other course[20]

-          Their pretension of morality serves only to veil their moral narcissism[21]

Rather than being driven by a single factor, whistleblowing can arise from interactions between individual and his situation:

-          If the organization has an ethical culture, whistleblowing may come easier[22]

-          Role-related responsibilities, such as being an internal auditor, can encourage disclosures[23]

-          Higher level managers are more likely to blow the whistle[24]

-          Whistleblowers have lower fear of reprisals from their employers[25]

-          Emotions, such as anger and guilt, can trigger whistleblowing[26], even when they are anticipated emotions (like after whistleblowing or inaction)[27]

-          If an individual suggests a corrective action during the course of performing his job duties, he may experience criticism, ostracism, and other soft retaliations that anger him and lead to escalating disclosures and retaliations[28]

-          The frustrations felt by the individual and by the company can trigger aggressive responses on either side[29]

To listen to their former employers, whistleblowers are just problem cases: they are disgruntled people who are unable to team with fellow employees; they are insubordinate and disrespectful of others; their performance is poor; they commit wrongs themselves; and they only want to harm the organization.

Borrowing thoughts from Hertsgaard, Henik, and Alford and drawing on my own experience with the eight incidents of alleged wrongs and tepid corrective actions at HomeFirst, I suggest a different explanation for the whistleblower:

Observers of organizational wrongdoing become whistleblowers when they have had enough of fighting for their own standing and against the power of the organization that denies them their promised rewards.

I contend that wrongdoing goes on all the time in every organization.  For much of his career, the employee thinks that he does, or will, benefit from what goes on, but eventually he finds that his reward falls short of what he expected.  Others might win, but he will not – at least not as much as he had hoped.  He recognizes that power is aligned against him, he can be fired for no good reason, the organization’s grandiose visions are empty, and his loyalty means nothing.  At that point, the lies and ethical conflicts that he had tolerated begin to eat at him.  He and others may praise the morality of his disclosure, but he stands up first for his own power.

The alert individual can become a whistleblower at just about any time in his career.  Dozens of times during a working life, he will be in the right place at the right time, he will compute the cost-benefit analyses, the wrong will be clear and offensive, but he will remain silent.  The time may come, though, when he says, enough, I have had enough. 

The whistleblowing that results will not be simply about the wrong; it will also be about powerful forces that have always been able to commit wrongs readily and without consequence.

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[1] Mesmer-Magnus, Jessica R. and Chockalingam Viswesvaran. “Whistleblowing in Organizations: An Examination of Correlates of Whistleblowing Intentions, Actions, and Retaliation.” Journal of Business Ethics 62 (2005): 277–297

[2] Miceli, Marcia P., Janet P. Near and Charles R. Schwenk.  “Who Blows the Whistle and Why?”  Industrial and Labor Relations Review.  45.1 (October 1991): 113-130

[3] Cassematis, P. G. and R. Wortley. “Prediction of Whistleblowing or Non-reporting Observation.” Journal of Business Ethics 117 (2013): 615-634

[4] Cassematis and Wortley

[5] Cassematis and Wortley.  Near, Janet P., Michael T. Rehg, James R. Van Scotter and Marcia P. Miceli.  “Does Type of Wrongdoing Affect the Whistle-Blowing Process?” Business Ethics Quarterly 14.2 (April 2004): 219-242.  Miceli, Marcia P., James R. Van Scotter, Janet P. Near, and Michael T. Rehg.  “Individual Differences and Whistle-Blowing.”  Academy of Management Proceedings 2001 PNP.

[6] Duska, Ronald. “Integrity and Moral Courage” Journal of Financial Service Professionals (January 2013): 20-22

[7] Hertsgaard, Mark.  Bravehearts: Whistle-Blowing in the Age of Snowden.  New York: Hot Books. 2016

[8] Miethe, Terance D.  Whistleblowing at Work.  Boulder, CO: Westview Press.  1999

[9] Cassematis and Wortley.  Miceli, Marcia P., Janet P. Near, and Terry Morehead Dworkin. Whistle-blowing in Organizations. New York: Rutledge. 2008

[10] Near, Rehg, Van Scotter, and Miceli

[11] Hertsgaard

[12] Keil, Mark, Amrit Tiwana, Robert Sainsbury and Sweta Sneha. “Toward a Theory of Whistleblowing Intentions: A Benefit-to-Cost Differential Perspective.” Decision Sciences. 41.4 (November 2010): 787-812

[13] Johnson, Roberta Ann. Whistleblowing: When It Works and Why. Boulder: Lynne Rienner Publishers. 2003

[14] Miceli, Near, and Schwenk

[15] Hertsgaard

[16] Duska, Ronald. “Whistleblowing and Employee Loyalty.” In Contemporary Issues in Business Ethics. DesJardins, Joseph R. and John J. McCall (eds.) Belmont, California: Wadsworth Publishing Company. 1985

[17] Bocchiaro, Piero, Philip G. Zimbardo and Paul A.M. Van Lange.  “To Defy or Not to Defy: An Experimental Study of the Dynamics of Disobedience and Whistle-blowing.” Social Influence. 7.1 (2012): 35-50.  Milgram, Stanley. Obedience to Authority. New York: Harper & Row. 1974

[18] Johnson

[19] Alford, C. Fred. Whistleblowers: Broken Lives and Organizational Power. Ithaca, NY: Cornell University. 2001

[20] Hertsgaard

[21] Alford

[22] Kaptein, Muel. “From Inaction to External Whistleblowing: The Influence of Ethical Culture of Organizations on Employee Responses to Observed Wrongdoing.” Journal of Business Ethics 98.3 (2011): 513 - 530

[23] Mesmer-Magnus and Viswesvaran

[24] Keenan, John P.  “Whistleblowing: A Study of Managerial Differences.”  Employee Responsibilities and Rights Journal 14.1 (March 2002): 17-32

[25] Cassematis and Wortley

[26] Edwards, Marissa S., Neal M. Ashkanasy and John Gardner. “Deciding to Speak Up or to Remain Silent Following Observed Wrongdoing: The Role of Discrete Emotions and Climate of Silence.” In Voice and Silence in Organizations. Greenberg, J. and Edwards, M. (eds.).  Bingley, UK: Emerald Group Publishing  2009: 83-109.  Henik, Erika Gail. “Mad as Hell or Scared Stiff? The Effects of Value Conflict and Emotions on Potential Whistle-Blowers.” Journal of Business Ethics.  80 (2008): 111-119.  Hollings, James. “Let the Story Go:  The Role of Emotion in the Decision-Making Process of the Reluctant, Vulnerable Witness or Whistleblower.”  Journal of Business Ethics. 114 (2013): 501-512

[27] Edwards, Ashkanasy and Gardner.

[28] Rehg, Michael T. “Retaliation against Whistleblowers: An Integration and Typology.” Journal of Academy of Business and Economics. 11.3 (May 2011)

[29] Dollard, John, Leonard W. Doob, Neal E. Miller, O.H. Mower and Robert R. Sears. “Frustration and Aggression.” In When Men Revolt and Why. James Chowning Davies (ed.) New Brunswick: Transaction Publishers. 1997

Whistleblower Opponents: Proof (Part 4)

Whistleblower Opponents:         Proof (Part 4)

Once the whistleblower establishes a plausible argument that retaliation resulted from her disclosures, the company presents its alternative narrative.  In some cases, the company finds or manufactures specific acts by the whistleblower that could justify termination – such as budget restrictions and accusations of misuse of company assets, theft, lying, and disclosure of confidential information. 

More often, though, the company flings vague complaints that are difficult to prove or, more importantly for the whistleblower, to disprove convincingly:  She used poor tone in her communications; she was insubordinate; her performance was inadequate; she could not work well with others.

While the company fires these personal shots at the whistleblower to undermine her claim, return fire is expected to focus on the whistleblowing-retaliation connection.  HomeFirst’s poor performance – it lost $3.7 million from 2011 through 2015 making it nearly bankrupt – is not considered relevant to what needs to be proved.  Its disrespect for me counts not at all.  Its preference for women who were much younger than me – the Chair, the CEO, the CEO’s direct reports other than me, and all of the program managers fit that description – is not relevant.  A culture that tolerated the wide range of misconduct described in my complaints is beside the point.

The unfairness of company snipes may inspire sympathy for the whistleblower.  Company retaliations can trigger many painful responses in the whistleblower, including PSTD, mental stress that leads to physical illness, and emotional distress, as well as causing her to waste time and money on her project.

Arguing against pity is the fact that the whistleblower is responsible for her course of action.  She may be influenced by forces she doesn’t fully understand[1], but her specific actions belong to her.  And she really should know that choosing to retaliate is the company’s rational decision.

-          Firing Daniel Donovan was Volkswagen’s sensible response after he discovered and complained internally about the company’s destruction of data that might help the government’s investigation of its software that circumvented emissions testing.  Doing so could strengthen its position in a lengthy litigation over its fraud.

-          Firing Michele Gutierrez-Canepa was a reasonable act by Fine Arts Museums of San Francisco after she complained that the Board Chair had improperly paid $450,000 to a former city employee who worked at the museum.  Doing so would give it a better chance to escape bad press during the State’s investigation and would help donors forget the unfortunate incident.

-          HomeFirst acted consistent with its interests when it fired me after I identified so many compliance issues and reported several of them.  It recognized that if I remained with the company I was likely to find and report more possible violations and I could force disclosure of problems in the coming audit.  In addition, my termination gave it free rein to make the County overbilling liability disappear from its balance sheet and to change its presentation of expenses so that it could appear more efficient.

But rather than blaming the whistleblower victims in these cases, I suggest that whistleblowers should strive to be fully aware of the dangers that they face when they disclose wrongdoing by their employers.  They should act, if they feel impelled, but they should act rationally.  Instead of passively accepting what some argue is their duty and loyalty to their employer, co-workers, profession, or ethical standards, they should become cagier opponents of the wrongdoers. 

Instead of pressing issues to higher and higher levels in the company, report anonymously the suspected wrongs to outside authorities sooner.  If history indicates that those to whom reports are made will not protect your anonymity, wait until you have resigned before making your disclosure.  Gather and safeguard as much evidence as is practical.  Plan to leave the company as soon as possible – do not be greedy.  Do not feel that you must be the one to defeat the beast.

In some ways, Edward Snowden sets the standard for a new whistleblowing ethic[2].  Although he raised his concerns over government surveillance activities with his supervisors, he did not rely on internal support.  He learned from the experiences of Thomas Drake that internal objections would be ineffective and external disclosures while employed by the NSA would lead to retaliation.  Before leaving his work with NSA, he collected a huge hoard of documents.  He made extensive plans for the release of the documents but left the country before beginning his disclosures.

Whistleblowers are best seen as soldiers fighting misused organizational power, and many have been or will be successful in a fight that has been going on for decades.  In the past two decades, whistleblower protections have been expanded with mixed effect, but systemic forces limit how effective protections can be.  As protections have improved, companies have expanded their use of non-disclosure agreements to restrict information about their activities including possible wrongdoing.  Despite new protective legislation, enforcement is underfunded at all levels of government.  Public knowledge of whistleblower activities is limited, and whistleblower success rates remain disappointingly low.

Organizations will always have more resources than the individuals who confront them, and they will always vigorously defend their territory by attacking outsiders[3].  In these fights, proof of one’s contentions is only one possible weapon.

The wrongs that organizations commit will continue to be difficult to prove, especially when the judges are allies of the wrongdoer.  As a consequence, whistleblowers should prepare to become guerilla fighters who resist limiting their tactics to those praised by their opponents.

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[1] Alford, C. Fred. “Whistle-Blower Narratives: The Experience of the Choiceless Choice.”  Social Research.  74.1 (Spring 2007): 223-248

[2] Hertsgaard, Mark.  Bravehearts: Whistle-Blowing in the Age of Snowden.  New York: Hot Books. 2016

[3] Alford, C. Fred. “Whistle-Blower Narratives: The Experience of the Choiceless Choice.”  Social Research.  74.1 (Spring 2007): 223-248

Whistleblower Opponents: Proof (Part 3)

Whistleblower Opponents:         Proof (Part 3)

Success requires a balance: To build her case against her employer’s wrongdoing, the whistleblower may have to remain employed long enough to become someone who must be attacked.  If she leaves too soon, she may not gather sufficient evidence to prove her complaint.

The need to gather evidence is no less great when trying to prove retaliation against the whistleblower.  In California, like most states, there are two stages to proving the case.  The whistleblower must first show “by a preponderance of the evidence that [whistleblowing] … was a contributing factor in the alleged [retaliation] against the employee.”  If the whistleblower’s evidence makes it appear more likely than not that she was fired in retaliation for whistleblowing, then the “employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate,  independent reasons even if the employee had not engaged in” the whistleblowing.

Evidence that I presented to Stacey, the State Deputy Labor Commissioner investigating my case, established, I believe, a strong connection between whistleblowing and retaliation:

1.       The HomeFirst CEO’s emails in the few hours after I disclosed on March 25, 2014 that I had blown the whistle on the County overbilling and the bid collusion issues documented the Board’s initial intent to fire me for insubordination in response to my disclosure.

2.       The emails described the Board’s shift, following discussions with an attorney, from immediate termination based on insubordination to a termination in July 2014 based on my inability to work with the team.

3.       The CEO’s April 7, 2014 “transition plan” document for the Board described firing me as a way to minimize the danger of future whistleblowing and unpleasant disclosures during the upcoming audit.

4.       The CEO’s written reprimand in response to my follow-up investigation of the food handler card issue in May 2014 connected retaliation to the possibility of future external whistleblowing, which I did just before being fired.

5.       The CEO and Treasurer fired me a week after I identified the payroll tax and minimum wage issues and after I informed the chair of the Audit Committee that I had reported the payroll tax issue to the State.

This all seems to me to amount to convincing proof regardless of HomeFirst’s claims that I was difficult to work with.  Still, all whistleblowers think that, I’m pretty sure.  I try to imagine how my proof could fail to convince.

The first three evidentiary elements relied on the CEO’s emails, which my old attorney Jaffe had claimed were the product of “unclean hands” and would kill my case if HomeFirst found out about them.  Stacey hinted at the same issue, asking whether I had a right to view them.  I answered Stacey’s question, perhaps well enough.  A risk remained that she could refuse the email evidence, cutting cut short her investigation and helping her reduce the many cases on her desk.

A more common approach to proving the connection between company actions and whistleblowing is temporal proximity.  HomeFirst’s attorney had advised the board to fire me immediately after my March 2014 disclosure to escape additional damage I might cause by disclosing more violations.  Sometimes whistleblowers are fired quickly after their disclosure, but usually they are subjected to other more covert forms of retaliation first.  The whistleblower reacts to retaliations and the unethical culture, and the company contends that it terminated her because of her reactions and not the earlier whistleblowing.  Two months passed between my March email and my termination; they decided to fire me but did not do it, weakening that temporal connection.

The last three issues – food handler cards, payroll taxes, and minimum wages – came up in the last two or three weeks before my termination, again signaling a temporal connection.  Like most of the other complaints, these were not officially validated.  Stacey asked whether the bid collusion complaint was validated.  That the Department of Justice did not see a violation of federal law should not matter to her as long as I was being reasonable in making my complaint, as required by the State of California (unlike Texas, for example).  She did not, however, ask me why I thought my complaints, even if lacking official validations, were reasonable.

She also wondered whether I was obliged to give the company a chance to fix the problems before I reported them externally.  That is a requirement in some states, like New Hampshire, but not in California.  The question seemed to me consistent with her devil’s advocate contention that I violated my duty of loyalty to HomeFirst by pressing issues that harm the company.  While that application of duty of loyalty appears unsupported in California whistleblower law, it finds favor in some popular and academic literature, especially when the employer does not get all the time it wants to repair its wrongdoing.

After Foucault, you might suspect that the legal system is an instrument of power in society, a worrisome possibility for whistleblowers who lack power.  Judgments, as well as rules, governing the admission of evidence determine what can be proven.  The resources of investigating agencies and their relationship with the accused company affect the interest they show in evidence they receive and how they understand that evidence. 

When Jaffe assured me that I had a case against HomeFirst, I assumed that my evidence would prove the truth of my complaint to any reasonable person.  It turned out that truth was not in Jaffe’s game plan.  Once the plausibility of my claim was established everything devolved to negotiation.  He shunned discovery, witnesses, evidence, and even mediation.  He needed only for HomeFirst to agree to pay out the legal cost it could expect in a suit, which neither he nor HomeFirst’s attorney wanted.

Proof of the whistleblower’s claim is not a demonstration that the claim is correct or true in any absolute sense.  Instead, proof is negotiated where little can be known with certainty.  Political authorities evaluate evidence based on reason and knowledge, but also biases and allegiances.  On some occasions, the whistleblower’s complaints are sustained, but far more often they are not.