Here are the TOP 10 STEPS public and private employers should consider taking to minimize the risk of whistleblower retaliation claims and build defenses where litigation is unavoidable. These steps are based on lessons learned through litigating whistleblower cases to verdict and counseling employers to minimize the risk of litigation. One important theme underlying these steps is the need to treat good-faith whistleblowers as assets.
1. Conduct focus groups & surveys
Develop an understanding of your workforce's beliefs about whistleblowing and attendant retaliation risks through focus groups and surveys. Design questions that will expose whether employees are apt to bypass internal compliance channels (or not complain at all) and why. Focus groups should be diverse in terms of age, length of service, race, responsibility and education.
2. Create and widely disseminate whistleblower protection policies with multiple avenues for reporting
Create and modernize policies on which employees can rely. In addition to codes of conduct, promulgate simple and straightforward whistle-blower protection policies. Include them in employee handbooks and make them available through multiple other channels. Ensure that they provide multiple reporting channels.
3. Conduct whistleblower-specific training for managers
A substantial volume of whistleblower complaints are made directly to managers, and managers' responses tend to vary and create risks. Managers need whistleblower-specific training on a regular basis to ensure that they respond appropriately to complaints.
4. Break down corporate silos so that HR, legal (employment counsel in particular) and compliance work together
As highlighted in our recent post on the DOJ/SEC guidance regarding the Foreign Corrupt Practices Act, whistleblower claims often implicate employment retaliation issues, performance management, discipline, investigations and critical compliance issues. HR corporate labor and employment (legal) and compliance functions should work hand-in-glove to ensure a fully informed, comprehensive approach is taken with respect to all aspects of the whistleblower response process.
5. Promptly appoint a liaison to the whistleblower
Many whistleblowers head straight to the government or an attorney when they feel isolated or ostracized for complaining. Combat this risk by swiftly appointing a corporate representative to serve as a liaison to the whistleblower.
6. Promptly conduct a thorough investigation, and report back to the extent practicable
Promptitude is critical to a successful investigation, so employers should develop rapid response systems that require investigations to be conducted shortly after a complaint is lodged. Whistleblowers should be advised that certain information must remain confidential, but that the company will provide the results of the investigation to the extent practicable.
7. Oversee the evaluations of whistleblowers who remain employed, with an emphasis on objective metrics
To ensure whistleblowers are not subject to retribution, an HR professional and/or a supervisor – ideally, one who is unaware of the whistleblower's report – should review whistleblowers' performance evaluations by using objective metrics to the greatest extent possible.
8. Reward good-faith whistleblowers
Consider rewarding whistleblowers either monetarily or otherwise for the benefit the complaint conferred upon the company. A letter of commendation from an executive to the whistleblower's personnel file is a good start. So is a bonus, and/or other recognition.
9. Report-out on responses to complaints
Show employees you are committed to protecting whistleblowers and that you take their complaints seriously. Consider providing generalized (anonymous) examples through an internal blog, newsletter or intranet posting. Consider describing the general nature of the complaint, some basics regarding the investigation, the speed with which the matter was resolved, the benefit the complaint conferred on the company and, if applicable, the benefit the whistleblower received for reporting.
10. Hold an annual "Ethics & Compliance Day"
Dedicate one day each year to focusing on the need for transparency, accountability and ethical and lawful conduct. Invite outside speakers with expertise in corporate ethics, deliver training on the code of conduct, whistleblower protection and anti-retaliation policies, and hold sessions with employees focused on your core values.
This post summarizes an article we submitted to Business Insurance (subscription required), which was published on December 2, 2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
