While whistleblower laws vary by state, a common requirement is that companies protect the person’s identity, Society for Human Resource Management reports. Other priorities for firms should be investigating the whistleblower’s complaint and ensuring the whistleblower doesn’t face retaliation for speaking out.
It does not matter what motivated the whistleblower to come forward, and the whistleblower doesn’t have to be right, but must have a reasonable belief that their complaint is true, says Meg Campbell, a lawyer with Atlanta-based Ogletree Deakins. It also is not required for whistleblowers to have firsthand knowledge about information they share, she adds.
Protecting a whistleblower’s identity can get tricky in instances where an employer will have to share information with other employees during an investigation, Campbell says. But the employer should make clear to people they speak with during their investigation that they should steer clear of outing anyone they suspect of being a whistleblower or witnesses. Employers also should guard against being dismissive of a complaint coming from a worker who doesn’t have a stellar employment track record, says Brian Neil Hoffman, a lawyer with Denver-based Holland & Hart. Employers should prioritize promptness, compliance with laws and transparency in their investigations.
"Whether there is a culture of fear of retaliation depends on how effectively the employer walks the talk on compliance," Campbell notes. "Tone at the top is critical, as is the tone at the middle. Employers should regularly revisit, revitalize and reinforce their commitment to a robust culture of compliance.”
Where applicable, employers should familiarize themselves with the 22 whistleblower protection laws enforced by the Occupational Safety and Health Administration, The National Law Review reports. It recommends employers train their workers about their right to report to OSHA in a timely manner. Employees are able to report directly to OSHA without going to their employer or human resources office first.
While OSHA may already know of an employee complaint, follow-up by the agency with that worker’s employer could bode well for the company if the employer is able to demonstrate a strong training program on employee rights. Companies should also embrace a strong anti-retaliation program that is clear to employees and conduct oversight that is regularly monitored and audited.
“OSHA also recommends incentive programs that reward employees for reporting concerns,” The National Law Review reports. “Top-level managers should be in the know on the results of these measures and engage employees to find ways to improve whistleblower programs.”
Legislators took recent action when Senators Chuck Grassley (R-Iowa), Tammy Baldwin (D-Wis.), Joni Ernst (R-Iowa), and Dick Durbin (D-Ill.) introduced the Whistleblower Programs Improvement Act in September, according to another article by The National Law Review. The act protects whistleblowers in the financial services industry who report to their firms about retaliation. The House passed a companion bill, the Whistleblower Protection Reform Act of 2019, in July.
But despite efforts to encourage employers to protect whistleblowers within their companies, some experts and former whistleblowers warn of the wide implications from Trump and Republicans calling for the identity of the whistleblower in the impeachment hearings to be revealed, the National Whistleblower Center notes. “Whistleblowers are a check and balance of last resort,” says Sherron Watkins, the whistleblower who exposed accounting fraud at Enron. “To me, when we seek out the messenger, the whistleblower, we’re doing the wrong thing."