Friday, July 8, 2016

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.





[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

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