Whistleblowers Become the Accused

Whistleblowers Become the Accused

When we blow the whistle, we expect trouble.  We just don’t know its full extent.

Blowing the whistle usually leads to some form of retaliation.  That’s to be expected.  We broke the group’s rules.  We betrayed our boss or coworkers by exposing someone’s mistake or an outright wrong.  We blew the whistle on our team.

We expect to be shunned.  At times throughout our lives we’ve been rejected when we offended others.  Or we have snubbed another when he annoyed us.

In business it’s natural to make these punishments financial.  By refusing her a promotion, a pay raise or overtime.  By relocating her office.  We can be shocked when positive performance reviews turn negative, but that is a conventional way to send a message.  You don’t belong here.

In some industries the injuries can become physical.  It happens in law enforcement.

We can even expect to be fired.  We are shocked, offended, but not entirely surprised.  Many of us have fired people in the past.  We can’t be naïve.

We know that our boss will not give us a good job reference when we resist company misbehavior.  Some whistleblowers drop the company from their resume and their linkedin page.  That gets tricky when it leads to misstating job histories.  We work around the problem.

Those are all issues we can anticipate because we have worked in organizations for years.  But there are legal troubles we don’t usually anticipate.  They can be nerve wracking and expensive.

Debra Halbrook worked as a legal assistant for a North Carolina district attorney.  The guy was offensive, the way he always carried his Glock and disrespectfully adopted images of her strict Christian faith.  She reported behavior she thought was wrong to State authorities.  The DA fired her.  She sued.  Her attorney went full bore.  He charged him with wrongful termination but also with racketeering offenses, obstruction of justice, civil conspiracy, and more. 

Now the DA has gone after Halbrook and others.  His suit charges Halbrook with racketeering, obstruction of justice, and civil conspiracy.  He also sued her attorney for abuse of process.  Pursuing a whistleblower lawsuit can be expensive, but defending yourself against a rabid former employer involves costs you never imagined.

Others have been sued over their whistleblower claims.  Theodore Schiff won his FCA suit against dermatologist Gary Marder, who settled with the Department of Justice for $18 million.  Marder said he would sue Schiff for things he had said.  MJS and Associates, a health care consulting company, lost $65 million in an FCA suit brought by Matthew Master.  It then sued Master for breach of contract and breach of fiduciary duty, among other things.  Fortunately for Master, a court dismissed the suit.

Sometimes companies sue employees for their whistleblowing actions before they were fired.  Nick Ramler’s former employer claimed he tried to use his evidence of wrongdoing to blackmail his boss into not firing him.  Todd Barretta, chief compliance officer for NJ Transit, was sued for breaching his duty of loyalty to the agency.  Elderick Brass, a former prison guard, was charged with a felony for releasing a video of a guard firing a tear gas canister at an inmate.

Organizations always try to justify firing the employee for reasons unrelated to whistleblowing.  That can protect them from the eventual wrongful termination lawsuit.  And the wrongs they find can prove expensive for the whistleblowers.

Johnny Burris accused JP Morgan of pushing its investment products to customers for whom they were inappropriate.  The bank fired him, and he sued.  As justification, the bank said Burris misused JP Morgan letterhead paper and he failed to execute a customer trade causing the customer to lose $624.  Fighting that charge at FINRA cost him $50,000 plus the $5,000 fine.

Megan Elizabeth NIsewarner called out contract irregularities in her school district among other wrongdoings.  Unfortunately, a search warrant resulted in finding marijuana in her home.  Possession charges were eventually dropped, but the district still used the discovery as reason for firing her.

If the whistleblower loses her suit, losses can mount.    Parsippany (NJ) township charged James Carifi illegally downloaded files he used as evidence of misdeeds.  He had to defend himself against that.  Then when he lost his whistleblower suit, he had to pay the township $164,000 for its legal costs.  Janice Marrin claimed her complaints about lax hospital procedures led to her being fired.  After she lost her lawsuit, she was ordered to pay the hospital’s defense costs.

Organizations like to hold the threat of lawsuits over former employees who might talk about their cases.  HomeFirst proposed a settlement agreement to me that barred me from discussing the settlement or my employment with HomeFirst.  A friend of a friend of mine settled with a large bank that insisted on nondisclosure.  The bank requires annual depositions to make sure she hasn’t discussed it with anyone.  Otherwise she can deal with them in court.

I refused HomeFirst’s settlement, but still it blustered.  When I continued to follow-up on my complaints about its behavior, it sent me a letter threatening legal action.  I did not stop, and I never heard from it again.  The California Bar said the HomeFirst attorney had the right to threaten legal action if I defamed the company.  But, of course, that was not exactly the warning its attorney intended.

Sometimes whistleblowers are burned when they don’t stop.  Blue Shield of California fired Michael Johnson after he complained the nonprofit behaved more like a for-profit company.  Johnson has continued to be publicly vocal.  And he battles Blue Shield’s lawsuit trying to get him to stop revealing what it considers confidential information.

When we start on our whistleblowing ventures, we envision a limited field of action.  We simplify.  We see ourselves as moral champions, not as dissatisfied and a little vengeful.  We ignore the fact that the organization will quite reasonably seek its own revenge against us.  Its attacks will be fueled by resources we cannot always match.  It will attempt further acts we don’t imagine.