How to Be an Informant
There seems to be a lot of talk in the news lately about the exposure of wrongdoing. And that makes us ordinary fools ask ourselves: how would we cope with the invention of our colleagues or bosses if we had to – either to protect other consumers and citizens, or just to cover ourselves? If an employee sees some dirty business and wants to draw attention to them, how can he defend himself legally?
Well, it turns out this is a pretty tricky dilemma, ”David Marshall of Katz, Marshall & Banks told Lifehacker, but the first thing to know is that whistleblowers are usually protected by federal and state laws. “Whistle-blower protection laws (of which there are a couple of dozen federal laws and many state and local government laws) are designed to protect employees who speak up on matters of serious public concern,” he says.
The details of these protections vary from issue to issue, from context to context, and from industry to industry, Marshall said – protection for nuclear workers will not be the same as for healthcare workers, the financial industry, or aviation. But protection laws have a few things in common, and potential whistleblowers would be wise to follow a few general guidelines.
Try to solve the problem first using internal channels
First things first: find out if there is a way to tackle the problem at a lower level. “Ask yourself: Is there any way in the company or agency that I can bring this misconduct to the attention of senior management? This will almost always be the first thing a whistleblower will do – try to solve the problem from the inside, ”John Tyco of Washington-based Tycko and Zavareei told Lifehacker.
Most government agencies or legitimate companies (i.e. not organizations created solely for fraudulent activities) have some kind of mechanism or internal process, such as a hotline for employees or whistleblowers, to combat illegal behavior. After all, most companies want to know if anyone working for them is breaking the law. Document your concerns in writing. AND…
Make sure you know what you are doing before you act. “To be protected, an employee must engage in ‘protected activities’ – which usually means complaining in good faith about what they reasonably consider to be a violation of certain laws,” explains Marshall. This means not just routinely complaining to anyone who listens, or disagreeing with your superiors about corporate strategy or direction, “but complaining somewhat specifically about unsafe or illegal activities. And they have to report these issues either to the supervisory authorities in their company or to various regulatory bodies. “
Stay away from social media
And don’t post status updates about your complaints. “In most cases, employees are not immune from reporting violations in the media or on social media, or against company customers or an employee’s own friends. Speaking should be addressed to those in positions of responsibility, whether in the company or in government agencies, ”adds Marshall.
But suppose it doesn’t work. If you know your aviation company is manufacturing a part that tends to melt at high temperatures and you have alerted management but nothing happens (or you get rejected), you want to …
Next, collect the facts. “If an informant calls me and says, ‘This is the story, I will tell you about this incredible conspiracy that is going on inside my company,’ I will sit down and listen to the story. And then I will always ask the question : “What evidence do you have to support your story?” Any documents proving that what you say is true? Or some other witnesses who were also at the meeting who will tell me that what you are telling me is true? “Says Taiko.
Supporting evidence is indeed a key to be taken seriously because, as Tychko points out, often the stories told by whistleblowers may sound a little (or a lot) wrong. “They sound like a Grisham novel!” He says. “Separating delusional conspiracy theories from people who are truly at the epicenter of the conspiracy is actually key … and there will always be a question, ‘Can you show me something that supports this? “”
This brings us to the most difficult part of the process: collecting evidence, possibly in the form of paperwork, from your company. But-
Don’t Gather Too Much Evidence
Leave your flashlight and big bags at home. As Marshall points out, the employee must act wisely. “They can’t just rummage through the filing cabinet at night and collect a bunch of documents, collecting everything that, in their opinion, may be relevant to the problem,” – he notes.
Uploading huge amounts of data to a flash drive means potential informants are taking documents that have nothing to do with their case and that they are not entitled to: customer lists, confidential information, payroll information, trade secrets, etc. the whistleblower is vulnerable to company lawsuits and weakens their arguments.
Typically, says Taiko, take what you absolutely need and no more. “If a government investigator, or a lawyer, or an FBI agent, or anyone else you are going to show it to, if what you filmed exhibits illegal behavior, they won’t worry about how you got it,” explains he. “[And the company] won’t draw more attention to this fact by suing you.” (He stresses that the odds are not zero – some companies indiscriminately sue everyone.) HIPAA , for example, has a big whistleblower exception.
Consult a lawyer
You can do this at any stage of the process, and Marshall recommends finding a lawyer before taking any action so you can protect yourself from retaliation. If this moment has come and gone, Taiko still advises you to contact a lawyer. “If you are at a point where you have not been able to solve the problem from the inside and you are being targeted [or afraid of retaliation], or you just want to do the right thing, you should consult with a lawyer,” he says.
If you work in the corporate world, you can start with Taxpayers Against Fraud and look for the names of lawyers. Taiko notes that the whistle-blower law is very niche – he estimates there are about 500 people in the United States – so would-be whistleblowers need to look nationally and focus their searches in big cities. “Look for experience, not the region,” he adds.
If you work for the government, Marshall and Taiko both recommend contacting the Government Accountability Project or the Government Oversight Project for advice and guidance. Taiko has written a quick guide to whistleblower qui tam cases – cases where an employee discloses an employer’s illegal behavior to the government and is thus eligible for a reward that is a fraction of a government reimbursement (think healthcare fraud) – so if this is your situation it is worth reading. For everyone else, remember to complain specifically, gather (not too much) evidence, stay away from Facebook, and see a lawyer.
This story was originally published on 5/8/17 and updated on 9/20/19 to provide more complete and up-to-date information.