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Protecting Whistleblowers

When you hear the word “whistleblower,” you probably think of someone like Edward Snowden, the former National Security Agency subcontractor who leaked top-secret information about NSA surveillance activities. Or, you might think of Sherron Watkins, who warned Enron founder Kenneth Lay that the company faced financial doom if it didn’t clean up its disastrous accounting practices a few months before it came crashing down.

These well-known examples suggest that whistleblowing only happens in the government or in big, nationally recognized companies. That isn’t so. If you own a small company in Bakersfield, one of your employees could become a whistleblower and, if that happens, you need to protect that employee in order to protect yourself.

A whistleblower is an employee who discloses any kind of information or activity about its employer that is deemed illegal, unethical, or not correct. The disclosure may be to a government or law enforcement agency, person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct the situation. Employees who provide information or testify in an investigation, hearing, or inquiry are also considered whistleblowers.

Information that is disclosed by an employee working in a small company often includes not being paid properly, being made to work in unsafe conditions, or being harassed. This information is often provided to employers and supervisors or to government agencies, such as the Labor Commissioner, OSHA, the Department of Fair Employment and Housing, or the Equal Employment Opportunity Commission. These kinds of complaints (whether provided internally or externally) might not seem like examples of whistleblowing, but they are. Therefore, employers need to take them seriously and respond appropriately.

Unfortunately, employers often respond inappropriately when employees make complaints. Tom Devine, legal director with the Government Accountability Project, says that employers often view complaining employees “the same way that any animal views a threat” and respond defensively by taking adverse action against complainants such as terminating, demoting, relocating, or disciplining them. In case you’re wondering, that’s considered to be retaliation and is illegal.

Think I’m exaggerating about employers often retaliating against complainants? Here are just a few examples of workplace retaliation in California:

Mark Ramijak, an account executive for FileNet Corp. in Costa Mesa, filed a claim with the Labor Commissioner for unpaid commissions. Shortly thereafter, his sales territory was reduced. Ramijak sued for retaliation and was awarded $2.7 million by the jury.

Herbert Alexander, a trucker with Skyway Inc., complained to his employer that his rig was leaking oil, had bald tires, and was infested with bedbugs. His employer then docked his pay for the cost of repairs and refused to give him more work. Alexander filed a Cal OSHA whistleblower lawsuit against the company, which settled for an undisclosed amount.

Regina Venegas, a dishwasher with The Good Fork restaurant in Morgan Hill, told the restaurant owner that a supervisor had flashed his buttocks at her. Venegas was subsequently told that the restaurant no longer had work for her. The EEOC sued on her behalf and the owner paid $20,000 to settle the suit.

What can employers do to prevent such lawsuits? Instead of getting back at employees for complaining, employers should encourage employees to voice their concerns to them, thank them for coming forward, and fix whatever problems they revealed as soon as possible.

Additionally, when employees inform employers about the misdeeds of their co-workers (such as working unsafely, theft, being under the influence, etc.), employers need to protect the identity of complainants as well as protect them from being retaliated against by other employees. A warning that getting back at the complainant in any way will result in disciplinary action is usually necessary.

Our DNA encourages us to fight when we feel threatened. However, the real way to survive in the working world is to protect complaining employees, not punish them.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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