News about whistleblowers can be disheartening. We want to believe that what we did had social
value even if it resulted in our being fired.
Like other whistleblowers, I wanted to see the world change, but it ignored
my effort.
I
hope movements like MeToo and BlackLivesMatter succeed, in part because their
gains can help validate resistance by peanut whistleblowers like me. Yet over the past few years the public’s interest
in whistleblowing has diminished, if anything, at least judging
by Google searches. Sympathy may
persist, but we are no leading edge of a revolution in corporate management.
The 2016 Retaliation Complaint
Report from California’s Department of Industrial Relations (DIR), which
enforces California’s whistleblower protection law, was discouraging. While complaints of retaliations[1]
tripled over the 2011 level, the number of determinations made by the DIR
dropped by a third. In 2016, 1,486
whistleblower complaints were received and only 141 determination letters were
issued. Of the determinations issued
from 2011-2016, just 21% were in favor of the whistleblowers[2].
While I waited for DIR to respond to my complaint, I had examined
determination
letters from 2014. At the time, I
was optimistic although I saw risks.
HomeFirst was a nonprofit, and only 9% of those who complained about
nonprofits were successful that year.
HomeFirst said they fired me because of my job performance, and just 15%
of those accused of poor performance won their cases. I was called insubordinate, a company defense
that convinced the DIR 92% of the time.
The 2016
determination letters showed even greater risk. Just 4% of claimants against nonprofits won,
and the poor performance defense worked for companies 90% of the time. Whistleblowers who identified legal problems,
like those
I alleged against HomeFirst, lost their cases 93% of the time. In 2017 my own
determination letter arrived and killed my dream. The DIR believed HomeFirst, not me.
These letters can be depressing. Lawsuits give voice to the whistleblower’s
side of the story even if it loses in the end.
But in the letters, the DIR generally embraces the companies’ claims. In the decisions we hear echoes of our own stories
among the losers’ cases.
Take Alice
Voluntad, whose experience parallels mine.
She was working for nonprofit United Health Centers of San
Joaquin Valley in November 2013 when she saw what she thought were
violations of Women,
Infants and Children (WIC) regulations.
She raised the issues with her managers then and again in December. She warned them she would report them to the
State. But she didn’t do that right
away.
Instead, she waited.
The violations stayed uncorrected.
Relations with her team went south.
At her annual performance review in April 2014, she complained about her
treatment. She used a profanity to
describe how the team leader made her feel.
Her language was inappropriate, she was told. She was insubordinate. She was written up and suspended. Two weeks later she met with managers, and
again she acted inappropriately, they thought.
Finally she sent her disclosures to the State. The following week she was presented with a
performance improvement plan. Pissed
off, she was insubordinate again and refused to sign the PIP. So they fired her.
Like mine, Voluntad’s complaint to DIR seems doomed from the
start. Our adversaries were
organizations that claimed to do great good.
United Health Centers was not just a nonprofit, it was exemplary. It provides critical health care to rural
poor in that agricultural region; 91%
of its patients are Latino. Similarly
laudable, nonprofit HomeFirst
serves the poorest of the poor – the homeless.
Our disclosures involved arcane legal violations. Both companies called us insubordinate after
we objected to their inaction on our complaints. Both pushed us until they got what they
needed.
The DIR concluded our terminations were justified and
non-retaliatory. HomeFirst ended my
career. Voluntad worked a couple
of years more for Kings County as a part-time nutritionist, then retired back to her home in
Oklahoma.
As statistics and our individual results make pretty clear, statutory
protections against retaliation are no sure path to justice. Big-time whistleblowers Edward
Snowden and Thomas Drake questioned protections available to intelligence
community members, but we are all vulnerable.
The inequity can make us angry.
HomeFirst did to me and United Health Centers did to
Voluntad what companies usually do to employees who resist organizational misbehavior. They fired us and cited familiar
justifications. They didn’t need a
reason, though. We were at-will
employees who could be eliminated without cause, as HomeFirst was quick to
point out.
We differed from other unhappy employees only in that we happened
to see and disclose potentially illegal activities. That chance circumstance[3]
transformed HomeFirst’s CEO and board members[4]
from effective to unethical managers. It
shifted Voluntad’s managers from good people to bad.
Voluntad and I did what many employees do when their situations
no longer please them. Feeling unable to
leave, we pushed back and spoke out. We
converted our discontent into moral objection after witnessing our employers’
misdeeds.
Then DIR tossed out our moral claims. I was not a “good faith” whistleblower, it
said, because I had objected too often. Voluntad’s
long wait before reporting the violations to authorities voided her claim on
whistleblower status.
When I blew the whistle on HomeFirst, I performed a moral
act that I hoped would produce social benefit.
Just as much, though, I did it for other personal reasons. I thought the CEO was incompetent and the
company would benefit if my whistleblowing led to her departure. She insulted me more than I did her. She made the final years of my career
painful. It sounds petty, I know.
Careers demand that we hunch over much of the time. We are okay with that when it pays. We don’t need great courage for our whistleblowing effort: standing
up, especially at the end of a career, can feel good. Although we may get angry
in our project, we should not be discouraged. We act for reasons that we need to honor. We should admit them even in defeat.
[1]
Violations of California Labor Code section 1102.5, which covers complaints
like the one I filed
against HomeFirst Services of Santa Clara County
[2]
Analyses of retaliation complaint reports and the determination letters I
obtained from DIR are summarized in this
excel spreadsheet.
[3]
Cf Latus, Andrew. Moral Luck. Internet Encyclopedia of Philosophy. Accessed July 7, 2018. & Williams,
Bernard. Moral Luck. Cambridge University Press, New York. 1981
[4]
CEO Jenny Niklaus
and, in particular, board members Suzanne St. John-Crane
(chair), Gary
Campanella (treasurer), Mark
Donnelly (audit committee chair), and Linda Chin
(development committee chair), all of whom participated in the decision
to fire me a day after I admitted disclosing
a violation to the California Community Care Licensing Department.
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