Blowing the whistle at work
Thousands of workers witness wrongdoing at work. Most remain silent. They decide that its not their concern; that nothing they can do would improve things, or they cant afford problems at work.
Other workers choose to speak out. They "blow the whistle" on unethical and illegal conduct in the workplace. Whistleblowing means disclosing information that a worker believes is evidence of illegality, gross waste, gross mismanagement, abuse of power, or substantial and specific danger to the public health and safety.
Whistleblower actions may save lives, money, or the environment. However, instead of praise for the public service of "committing the truth" whistleblowers are often targeted for retaliation, harassment, intimidation, demotion, dismissal and blacklisting.
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 states 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.
This law says a worker cannot be discharged or discriminated against because the worker has filed a complaint or started a proceeding under the states occupational safety and health laws, has testified, or is about to testify in such a proceeding.
A worker who has been discriminated against or discharged may file a complaint with the Department of Consumer and Industry Services within 30 days of the discharge or discriminatory act. The department may investigate to determine if discrimination occurred. If the "preponderance of evidence" shows discrimination occurred, the department may order rehiring or reinstatement with back pay. The department has 90 days to make its determination.
The employer or the worker may request a review of the department determination within 15 days of notification. An administrative hearing will be held after which either side can go to circuit court.
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.
The WPA has a ninety-day statute of limitation. That is, you must go to court within 90 days of the act of retaliatory discrimination. Action may be brought in the circuit court for the county where the alleged violation occurred, where the plaintiff lives, or where the person against whom the suit is filed lives or has their principal place of business.
You have a right to a jury trial if you choose.
The court can order reinstatement, back pay, full reinstatement of fringe benefits and seniority rights, and damages. The court may also award costs, reasonable attorney fees and witness fees.
The WPA is a whistleblowers only remedy to defend against being fired for reporting the employers illegal acts.
The whistleblower must show by "clear and convincing evidence" that they, or a person acting on their behalf, reported or was about to report, verbally or in writing, a violation or suspected violation of a state or federal law to a public body.
The whistleblower must prove that they were engaging in protected activity and that activity was a motivating factor in their being fired or disciplined. If the employer states a legitimate reason, the whistleblower can still prevail by showing that reason to be a mere pretext for firing or discipline.
The illegality may be by your employer or another employer if you come across the violation in the course of work and if it affects your employer. Subcontractors may not use the law because they are not employees.
Deciding to blow the whistle
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.
Before whistleblowing ask yourself:
Is the wrongdoing at issue substantial enough to warrant the risks of reprisal and the investment of human and financial resources to expose it?
Are your allegations reasonable and can they be proven?
Can you make a difference in resolving the wrongdoing if you blow the whistle, or will you be beating your head against a bureaucratic wall?
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.
You must also have a realistic view of the law and the degree to which you will be protected for speaking truth. Theoretically federal government workers have protections for whistleblowing, but federal workers who try to defend their whistleblowing activities before administrative law judges often find these rights exist on paper only. Private sector whistleblowers have even weaker legal defenses to retaliation.
Beyond the risks of job loss and weak legal protection there is also an emotional and mental price to pay for whistleblowing. Friends may turn against you; co-workers may treat you as an outcast.
Do not blow the whistle unless you are prepared to follow through on your charges. It will be difficult to stop in mid-stream and as a general rule it is better to have looked the other way than to have blown the whistle half way.
Where & how
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. Its 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.
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.
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.
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
Whistleblowers often think they are legally protected from retaliation. Thats somewhat true. It is your right under the Constitution and numerous laws to blow the whistle and not be discriminated against for doing so. Government employees have protection under the First and Fourteenth Amendments, which prohibit governments from retaliating against workers who express reasonable dissent on public concerns. Protections for private sector workers have developed in recent years through statutes and common law.
But these protections are neither comprehensive nor well enforced.
The chances of winning a lawsuit claiming you were wrongly retaliated against are not good, but they are improving. The rate of winning in administrative hearings under federal whistleblower laws has risen from under 10 percent to about 25 percent in recent years in "reported decisions". However, many cases are thrown out on procedural grounds and "unreported decisions" tend to go against whistleblowers.
The legal protections that exist will not stop your employer from retaliating. The best the law can do is some day provide redress for illegal retaliation.
Before blowing the whistle you should know the legal protections and their limits.
Finding legal help
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 doesnt 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.
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 whistleblowers 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, "Youll 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.
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.