workers
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Blowing the whistle at work Introduction Thousands of workers witness wrongdoing at work.
Most remain silent. They decide that it’s not their concern; that nothing they can do
would improve things, or they can’t afford problems at work. Michigan has two workplace whistleblower laws. These two laws are similar in that both are intended to protect workers who "blow the whistle". One law is the "equivalent" to the whistleblower protections found under the federal Occupational Safety and Health Act, Code of Federal Regulations (CFR) 29, Section 11(c). It allows the state’s department of labor (now the Department of Consumer and Industry Services) to investigate and determine whether the charges made by the whistleblower are a violation of this law; and, the whistleblower has only 30 days to file this complaint with the state. The other Michigan whistleblower law, however, allows the whistleblower to bring the case directly to circuit court, and gives the whistleblower 90 days to file the action. The "11(c)equivalent" is found in the Michigan Occupational Safety and Health Act, Public Act 154 of 1974, under section 408.1065. The Michigan Whistleblowers Protection Act (WPA) is found under Public Act 469 of 1980, section 15.363. 11(c) equivalent Michigan Whistleblowers Protection Act The Michigan Whistleblowers Protection Act prohibits
an employer from discriminating against a worker because the worker has reported or is
about to report a violation or a suspected violation of law to a public body. Deciding whether and how to blow the whistle may be among the most significant choices you ever make. Understand the risks before proceeding. Talk to an attorney experienced in whistleblower law.
Studies show that over 90 percent of whistleblowers
report retaliation. The record shows that employers do not want to be told what is wrong
with their operations. Many employers will try to "shoot the messenger" in order
to avoid liability, bad publicity, or simply to continue to benefit from the ongoing
misconduct. Whistleblowers commonly face harassment, social ostracism, demotion and being
fired. If you decide to blow the whistle you will be faced with another dilemma: where do you take your story? What approach will best protect you while exposing and correcting the wrongs you have revealed? Hotlines and other disclosure programs Most federal agencies have employee hotlines for reporting of fraud, waste or abuse. Unfortunately, government hotlines have proved neither effective nor safe. Confidentiality is a problem. It’s hard to give enough details to support your allegations without identifying yourself. Some hotlines have reported callers’ identities to the callers’ boss. Corporate voluntary disclosure programs are the private sector equivalent of government hotlines. The conflict of interest is obvious. In-house investigators, often attorneys, have a duty to protect the corporation, not the public. Neither government nor corporate in-house disclosure programs can be considered safe or effective. Inspectors General For federal employees the primary conventional channel for investigation of concerns is the Office of Inspector General (IG) in each federal agency. IGs have a mixed record, at best, of responding to whistleblowers. Even IG Offices with statutory independence are often grounded in the "old school" traditions that the IG is the eyes and ears of management. When an agency chief wants to get the facts and act against wrongdoing the IG acts as a law enforcement agency. But when the agency head wants to cover up a problem the IG engages in damage control. The False Claims Act This is a way for whistleblowers to expose fraud in federal contracts. Individual "realtors" – employees or non-employees who are original sources of evidence of fraud – can challenge government contract fraud before a jury of taxpayers. There are specific requirements for filing and the process can be long and expensive. A false claims suit imposes limitations on the whistleblower, including a prohibition on discussing the evidence publicly. Congress/State Legislature Whistleblowers have sometimes gotten legislative oversight of executive branch abuses. But legislators are pressured by a range of constituents including major donors with things to hide. Legislators also want good relations with the executive branch so many will simply pass information to the agency involved. You must carefully research a politician before blowing the whistle this way. The News Media The news media can be an effective outlet for whistleblowers. Or it can lead to disaster. To protect yourself you must research and choose a reporter carefully. It is important to understand what a reporter can and cannot do for you. Before giving any information to a reporter be sure to clarify the terms of your working relationship. The news media, like the legislature, is owned by and beholden to wealthy people with things to hide. Advocacy Groups Non-profit advocacy organizations with interests similar to those driving you to blow the whistle can provide advice, share their own research and knowledge, act as allies, and serve as conduits for anonymous disclosures. Some organizations, such as the Government Accountability Project, specialize in helping whistleblowers. Unions can provide valuable assistance and there is strength in solidarity. Legal protections & their limits Referrals Contact public interest groups, unions, the National Lawyers Guild, and the American Bar Association for suggestions. Ask for attorneys who have expertise in wrongful discharge. If that doesn’t work ask about specialists in employment law. Summarize your story in writing Write your story in two pages. Stick to the facts. Mention special circumstances. Include a list of potential witnesses. Compile a list of supporting documents currently or potentially available. Take your time preparing this statement. It will give the lawyer a first impression of you and your communications skills. Confirm application of attorney-client privilege and check for conflicts of interest Before the first meeting check the list of "representative clients" in the Martindale Hubbell lawyers guide. Before sharing information confirm that the lawyer will not reveal information without your consent. If your research revealed potential conflicts, ask the attorney about them. Find out the track record the attorney has in similar cases Ask about the win-loss record and significant precedents or benefits the attorney has gotten for other clients. You could also look at public court records such as briefs or judicial decisions in similar cases. Make clear your goals and objectives Be clear about your expectations. Attorneys vary widely in values, priorities and style. One firm may be good if you want to settle things quietly, a different firm if you are focused on getting your day in court or before the public. Clarify financial & time commitments Find out if there is a fee for the initial consultation. Once you decide on an attorney be sure to discuss and agree on financial obligations. Find out how much time the attorney will put into your case. Find out how much time is expected of you. Pin down your role in any negotiations Most legal cases settle before trial. Settlements are, by definition, a compromise in which both sides will be partially disappointed. Request advance notice of proposals before they are made and notice of offers from the other side before any response is issued. A retainer is a contract Read the terms carefully. Make sure any informal agreements are included. If you do not understand a term ask for a plain language translation that you understand. If the attorney balks, consider that a warning. Recognizing retaliation If you plan to challenge the agency or corporation that employs you, you should know the tactics of retaliation most often used against whistleblowers. Many are like tactics used against workers who organize unions. Spotlight the whistleblowers This common retaliation strategy tries to make the whistleblower, instead of message, into the issue. Employers attack the whistleblower’s motives, credibility, professional competence, or virtually anything else that will work to cloud the issues raised. Manufacture a poor record Employers sometimes spend months or years building a record to brand a whistleblower as a chronic problem worker. To prepare for firing, employers may compile records about any incident, real or contrived, that conveys inadequate or problematic performance. Whistleblowers who previously got positive job performance evaluations may begin to receive poor ratings. Threaten them into silence Threats may be direct or indirect. The boss may say, "You’ll never work again in this town/industry/agency." Or an employer may issue gag orders forbidding the whistleblower from speaking out under threat of firing. Isolate or humiliate them Employers may make an example of a whistleblower by separating her from co-workers. This tactic is often combined with stripping the whistleblower of duties in order to facilitate eventual firing. Set them up for failure As common as stripping duties away is the opposite – overloading the whistleblower with unmanageable work and taking away the resources needed to fulfill the tasks. Prosecute them Attacking whistleblowers by accusing them of "stealing" the evidence is becoming more serious and frequent. The employer will claim the evidence is stolen private property. Government workers have been threatened with prosecution under a McCarthy era law for being "disloyal" after participating in meetings with environmental groups suing the government for illegal activity. Eliminate their jobs Employers may lay off whistleblowers even while other hiring is going on. "Reorganization" may move whistleblowers into marginal jobs. Those who manage to avoid termination may find they are left to rot in their jobs never able to transfer or be promoted. Bad references for future jobs are common. |
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