Perseverance

Perseverance

When we begin our whistleblowing projects, we see the wrong and ask for correction.  We usually think the matter is pretty simple.  We learn that time works against us as management drags its feet in addressing the problem.  Then come the retaliations.  If we pursue lawsuits in response to retaliation, that process, too, can demand years of fighting that we had not anticipated.

The reports that make their way into public media often refer to the whistleblower’s fight against retaliation, but they seldom refer to the time and effort spent before the wrongdoer finally corrects the offending behavior.  For seventeen years after a former employee blew the whistle on for-profit ITT Educational Services, the company fought lawsuits before finally declaring bankruptcy.  Early Wells Fargo whistleblowers had to wait for 11 years before the public expressed outrage.  Even as it settled with the Consumer Finance Protection Bureau, Wells Fargo refused to admit any guilt in the matter.  The bank has reported making some internal changes, but whistleblowers may have to wait still longer before they see the hoped for changes.

Of the violations I alleged HomeFirst had committed, half were dismissed or simply ignored by the authorities charged with investigating them.  Into the Failed Complaints bucket went the site licensing and the food handler card violations when authorities were satisfied by HomeFirst’s operational adjustments that might avoid future problems.  The EHAP loan violation complaint was ignored, or misplaced, by the State of California, and I abandoned it.  The City of San Jose advance that HomeFirst misused was eventually forgiven by the City as part an effort to shore up HomeFirst’s financial position.  The payroll tax issue was ignored by the agencies to whom I complained, and I dropped it in favor of the related but more significant minimum wage issue.

Keeping my other reports from becoming Failed Complaints required persistent follow-up and inventive approaches.  When the State of California ignored my complaint that HomeFirst violated the minimum wage requirement, even after my follow-ups calls and visits and an appeal to my State Senate representative, I approached the U.S. Department of Labor.  After the DOL said it would not act, I turned to the City of San Jose with complaints to the relevant department and the City’s whistleblower hotline.  My 20 follow-up emails and requests for public documents to the City have not moved the matter to a conclusion.  But on more than one occasion, the follow-ups succeeded in prodding the responsible City manager to continue his investigation.

You can never be sure what new approach will work.  Shortly after I was fired I pitched the minimum wage issue to two class action attorneys without effect.  In the summer of 2015, I sent letters to pro bono law offices to see if they would take up the case, but they had no interest.  A year later, I tried three different offices associated with local universities, but they also were unmoved.  Without great optimism, I floated a complaint by the HUD Office of the Inspector General.  We will see what, if anything, works.

In response to HomeFirst’s contention to the City of San Jose that the clients involved did not deserve to be paid a minimum wage, I argued that the individuals were indeed HomeFirst’s employees.  I sent my rebuttal to the City Attorney’s Office, which has seemed to me more supportive of HomeFirst in the past.  Anticipating the City Attorney’s resistance to my argument, I will try again with the federal DOL, which has argued against HomeFirst’s position in past cases. 

My other still-open complaints – the HUD overbilling, the County overbilling, and the master lease violations – require the same sort of tenacity.  I’ve filed my complaints with the agencies themselves and with oversight groups; I’ve appealed to my local, State, and federal representatives.  I’ve approached news media and attorneys.  I’ve made public records requests, and I’ve sent follow-up messages to people whose email addresses I’ve snagged.  Each month I initiate a half dozen or more communications, and this has been going on for almost two and a half years.

Still, I am not sure if I will keep them all, or any of them, from being tossed into the Failed Complaints bucket.  I do know that HomeFirst did not want these complaints pursued when I worked there, that the settlement it proposed two years ago hoped to silence my complaining through non-disclosure and non-disparagement clauses, and that its threatening letter last year intended to quash my communications.  All that is, of course, familiar to other whistleblowers.

Before it is an ethical battle, whistleblowing is a defense of agency, the threatened loss of which first sparked the whistleblowing act.  Courage is demanded of one who elects to stand up against a more powerful organization.  And after that flush of courage, dogged yet creative perseverance is necessary if one hopes for a chance at success.