Whistleblowing and Justice
We whistleblowers seek justice. The wrongs we disclose may affect only us, or
they may affect many others as well.
When we file our retaliation complaints, we seek a very personal sort of
justice.
Preet Bharara, former U.S. Attorney for the Southern
District of New York (SDNY), describes a legal system trying to do what is
right. In Doing
Justice he says we need diligent, honest investigation of possible
crimes. Accusations of legal violations
based on hard evidence and the likelihood of being successful at trial. Fair and unbiased judgment. And punishment that is reasonable, provides
retribution when appropriate, and promises to protect society in the future.
In a smaller domain, the State of California’s Department of
Industrial Relations (DIR) attempts to do justice for those who file whistleblower
complaints, like mine in
2014. The DIR produces the determination
letter that we complainants receive. In it,
findings and conclusions are laid out. Occasionally
an employer is punished.
Those determinations[1]
in 2017 included a personal
victory for Reda
Kolta. Kolta was Assistant Manager at
the Intercontinental Hotel in San Francisco.
He complained about long hours and overtime and threatened to go to the Labor
Commissioner’s Office. Three weeks later
the hotel fired him. It claimed he was rude
to a hotel guest and botched a banquet room setup. The DIR investigated. It interviewed witnesses and decided that the
hotel’s criticisms of Kolta were merely pretexts for firing him because of his
wage complaints. After reviewing the
case for four years, it ordered the hotel to pay him $69,446 to replace wages
he lost while looking for a new job. It charged
the hotel a $10,000 civil penalty. Justice
was done.
Robert Zolensky II had a different experience. He worked as a paramedic
at different companies in northern California and Nevada. When interviewing for a flight paramedic
position at American Medflight, he said he was a volunteer firefighter and
might need to leave on short notice if called.
No problem, they said. Anyway, California law
protects the jobs of employees who are called to emergency firefighting duty.
After about a year on the job, Zolensky told management
about some potentially unsafe flight events.
After investigating, the company decided his report was exaggerated and
inaccurate. He complained to DIR about
retaliation, and an investigation ensued.
That took three years. The company
said he was disruptive and his behavior was inappropriate. But his pay wasn’t changed, and he wasn’t
fired. Two weeks after the incident he
quit. No retaliation there. He didn’t offer evidence to rebut the company,
DIR said. So it
dismissed his complaint. Again, it appears
justice was done even if Zolensky got nothing from it.
This is how things go for most who file whistleblower
complaints with the DIR. From 2013 to 2017,
DIR decided in favor of the only 21% of the complainants. And in just 26% of closed cases did accusers receive
any benefit at all (via determinations or settlements).
Zolensky, though, went further than most of us. In March 2016, 21 months after complaining to
DIR and 17 months before the DIR letter, he filed a lawsuit
against American Medflight. In it,
he described more retaliation, including intentionally inflicted emotional
distress, than DIR saw. He didn’t abandon
his job, as DIR accepted. He had to fulfill
his volunteer firefighter duty, and the company wouldn’t let him go until he
found a replacement. That refusal might
have violated state law. The company
disagrees, but DIR skipped over the issue.
When we lose our cases we question the process and the
people involved. The attorneys we hire
and the bureaucrats who pass judgment are doubted.
Bharara is most confident that justice can be done when he praises
his staff in SDNY. They are smart, dedicated,
honest, unassuming, likable, energetic, overworked, and blunt in a no-nonsense
way. The best of them believe in the
virtue of work. They don’t take
shortcuts, toot their own horns, or blame others for failures. They work as hard and run as fast to
exonerate the innocent as to convict the guilty. They go out of their way to get to the truth.
(On the other hand, whistleblowers are snitches. Tattling is not attractive. It’s a betrayal, he says.)
He becomes testy, though, when he discusses their failure to
convict any of the bankers responsible for the 2008 financial crash. There wasn’t the hard evidence they needed to
convict anyone, he says. No politics
were involved. How could there be, with
such straight arrow agents in charge?
What unclean motivations could they have?
We’re asked to take Bharara’s confidence in his staff on
faith. If we do, people who lost homes
and jobs in the crash have no gripe to make, or none worth hearing.
Reports
of nepotism and retaliation against its own whistleblowers suggest that Bharara’s
boy and girl scouts are not running the DIR.
Our trust wanes. We don’t know if
DIR intentionally ignored information in Zolensky’s case. Or if information from his lawsuit would have
changed the result.
After DIR considered my allegations against HomeFirst Services, it agreed with the
company no one retaliated
against me. It didn’t mention emails
in which Board members decided to fire me, at first for insubordination, eight
hours after I admitted reporting two possible violations. Or an email
the next day relating advice from counsel to come up with a better reason than insubordination. Within two weeks of my disclosure, the CEO
and Board had worked out a plan to
fire me. None of that got into the
DIR report.
We don’t know whether DIR omits others’ evidence, too. We can’t be sure if justice is denied as a
result. It sure seems we cannot count on
the DIR, or government in general, to reliably hear what we have to say. And, unlike a Snowden or Ellsberg, small-time
whistleblowers seldom attract media attention for even part of our projects. We carry on our fight for so long and without
an audience[2]. It can be hard.
We can’t put stock in the law to provide the kind of justice
we seek. It will help some –20% to 25% of
us, say – but we will always be responsible for our own lives.
[1]
Following my public records request the DIR sent me copies of their
letters in 278 cases, including mine.
It reported
having made 333 determinations and received 2,022 whistleblower retaliation
complaints in 2017. Of those
determinations, 65 favored the complainants.
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