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
[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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