Protecting Whistleblowers:

 

Best Practices for Promoting Ethics in Government

 

by

Dana L. Gold[1]

Senior Fellow, Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.

 

Government institutions that encourage employees to raise concerns have a built-in mechanism for fighting corruption, promoting legal compliance, advancing their missions, and fostering public trust. Effective ethics programs harness the value of whistleblowers by encouraging employees to identify problems while preventing and addressing reprisal. Implementing many of the best practices suggested below can help create an ethical workplace culture characterized by employees committed to raising concerns and promoting integrity and accountability in government service.

Whistleblowing 101: A Primer

 

What is a “whistleblower?”

Whistleblowers” are individuals who exercise free speech rights to challenge abuses of power that betray the public trust. They are generally defined under various federal and state laws as employees who make disclosures evidencing a reasonable belief of illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety. Some countries, such as the Netherlands, call whistleblowers “bell ringers,” after those who ring church bells when danger threatens a community. In some nations, they are known as “lighthouse keepers,” whose beacon exposes rocks and danger spots that could sink ships.[2] Identifying and disclosing problems is an integral part of being a good public servant.

 

The Value of Whistleblowing

As public confidence in our government and corporate institutions erodes, including our confidence in the systems that hold institutions accountable when they engage in wrongdoing, whistleblowers who speak up about problems they witness in the workplace are increasingly the best, and sometimes the only, mechanisms we have to prevent harm and protect the public interest.

Examples of significant issues identified by government whistleblowers include:

• Air Marshal Robert MacLean’s disclosure prevented the government from abandoning protection during a confirmed, more ambitious planned 2003 rerun of 9/11, and prevented the Al Qaeda attack.
• Marines Science Advisor Franz Gayl’s disclosures caused delivery of effective Mine Resistant Armored Protection vehicles to our troops in Iraq and Afghanistan after a 1.5 year delay, cutting land mines from 60% of casualties and 90% of fatalities to 5% of casualties.
• After a long term practice of detaining without evidence and even subjecting foreign visitors to hospital tests for smuggled drugs, U.S. Customs inspector Cathy Harris’ disclosures shrank from four days to two hours the time that visitors can be detained without due process available to U.S. citizens.
• The pain killer Vioxx was removed from the U.S. market after FDA scientist David Graham testified in Congress that the drug FDA officially had approved as safe in reality caused some 50,000 fatal heart attacks, killing nearly as many Americans as slain in the Vietnam war.

 

From saving taxpayer dollars to providing indispensible information to Inspectors General and ethics investigators to combat institutional corruption, illegality, and threats to public health and safety, government servants who report serious concerns—whistleblowers—are powerful examples of the importance of creating an ethical culture that encourages reprisal-free disclosures. Exercising the freedom to warn, whistleblowers can prevent avoidable liability or disasters for institutions that don’t silence the messenger, and give those institutions a chance to take responsible measures that address the problems disclosed, regaining public trust in government when it is at an all-time low.

The value of fostering a culture where employees feel free to raise concerns without fear of reprisal parallels the predictable, and wholly avoidable, costs of a chilled environment where employees stay silent. These costs include litigation, rooted first in employment claims from whistleblowers who suffer reprisal, or litigation prompted by the wrongdoing disclosed by the whistleblower or upon which the institution failed to act. Litigation is expensive, both in time and money to defend, with unknown exposure for liability after protracted litigation; it distracts from the work of the institution; it lowers employee morale; it chills other employees from raising concerns; and it offers little to no opportunity for creative problem solving; Organizations that fail to respond effectively and fairly to concerns raised by employees also invite adverse media exposure, which then can lead to oversight investigations, fines, disciplinary actions, and weakened public trust.

One of the keys to creating a workplace culture that embraces the value that employees who raise concerns can bring to an organization is by first recognizing the inaccuracy of some of the negative but pervasive perceptions about whistleblowers. For instance, while some whistleblowers are characterized as disloyal and self-serving, whistleblowers typically have spotless track records and are motivated by loyalty to the institution and a commitment to doing their jobs well. Similarly, there is widely held belief that whistleblowers are employees who report problems outside of the organization. In fact, not only do most employees want to work within the system to resolve concerns, most do: the Ethics Resource Center reports that 98% of whistleblowers first report issues internally to management. Generally they only break ranks if they believe nothing will be done internally, or that they will suffer reprisal. [3] The negative, and false, perceptions about what motivates whistleblowers often prompt knee-jerk management behavior that views the employee who raises a concerns as the problem to address, rather than addressing the problem identified by the employee. Nothing can hurt an organization more than an environment where employees are chilled from speaking up because of management inaction or likely retaliation.

 

Best Practices for Creating a Whistleblower-Positive Workplace

 

Lipservice about the value of an ethical culture that encourages employees to speak up about problems without risk of reprisal that is not backed up by best practices that actually support such a culture can erode employees’ willingness to act ethically and identify concerns. Those organizations truly committed to creating a culture that protects whistleblowers and treats their concerns seriously and fairly do so by implementing policies and practices that are applied consistently and monitored regularly.

Below are several best practices that encourage employee reporting and combat retaliation in order to maximize the value whistleblowers contribute to the success of the organization.

1) A formal policy to raise issues, communicated regularly by top leadership.

Senior management should set the “tone at the top” by articulating a clear zero tolerance policy for retaliation and a commitment to responding to concerns raised by employees with independent and thorough investigations. Management should be measured on and held accountable for the quality of their responses to whistleblowers and the concerns they raise.

Similarly, there should be an absence of policies that discourage disclosure, such as gag orders, overbroad confidentiality agreements, or other policies that conflict with the exercise of legal rights or the interest of creating a culture protective of whistleblowing.

2) Incentives for disclosure.

Fostering a culture that encourages employees to raise concerns and preclude reprisal can be incentivized through a range of mechanisms, such as:

• Favorably measuring reporting, rather than non-reporting . Often worksites measure how few problems were raised, injuries occurred, or other seeming indicia of a well-run operation, and tie those measurements to compensation or group bonuses. However, this can result in pressure to keep reporting issues low and thus chill disclosures. Instead, favorably measuring incidents raised and how they were resolved shifts this dynamic by removing the conflict between the individual choice to report problems at the cost of a lower rating for the workgroup.
• Recognizing improvements made because of disclosures. Recognizing improvements that have been made to legal compliance, cost savings, and exposing corruption because of employee disclosures, and rewarding employees in a small way for raising the issue, sends a strong message that identifying problems is good for the organization and valued.
• Accountability for co-workers and managers who retaliate, and rewards for those who support disclosures. Supervisors, co-workers and managers who engage in reprisal against employees who raise concerns—harassment, exclusion from meetings, shunning, reduced or excessive work assignments, etc.—should formally disciplined and held personally accountable for such behavior. Likewise, managers’ performance should be measured favorably for supporting efforts to create an environment conducive to raising and solving problems.

3) Multiple, safe, non-exclusive channels for reporting both issues and reprisal concerns.

Making available multiple, safe avenues for employees to raise concerns can foster a culture where employees feel like identifying problems is part of their job and recognized as essential to the success of the organization. However, those avenues must be trustworthy, protective of the employee, and understood by everyone in the organization. Successful reporting programs share safeguards such as:

• The option of anonymous, third-party reporting that is truly protective of an employee’s identity;
• Investigative processes are independent from management and Human Resources to ensure confidentiality and objectivity;
• Reports of reprisal are taken seriously and investigated to ensure that the reporting employee has not been threatened with discipline, or disciplined, for reporting a concern.
• Independent, confidential conflict resolution or mediation mechanisms , available as an alternative to litigation, are available to address both the problem disclosed by the employee and allegations of reprisal. Alternative Dispute Resolution can offer opportunities to resolve complex problems in creative ways for the benefit of both the organization and the employee;
• Employees are able to raise concerns to higher internal levels without restriction, and the right and process for doing so is understood by all workers and managers;
• Investigative processes are transparent in terms of how they are conducted, confidentiality and conflict of interest protections, timing, and investigative qualifications.
• Investigative processes ensure that the results of the investigation are communicated back to the employee;
• All supervisors, managers and investigators are trained to protect the employee from reprisal and to focus on the issue raised, not the employee who raised the concern. All parties who may receive reports of problems are conscious to not focus on the motive of the employee or character narratives that frequently develop to discredit employees who identify problems;
• Investigations into concerns focus on objectivity, solving the problem disclosed, and preventing retaliation , rather than taking a defensive posture towards the employee or the problem identified.

4) Training About Whistleblower Rights and Anti-Retaliation

Reacting negatively or defensively to someone who identifies a problem is reflexive for almost everyone, so proactive efforts to recognize and combat this natural response through training is an important component to creating an ethical culture safe for employees to raise concerns. Training should be mandated for everyone in the organization on topics including:

• Legal rights and duties of employees to report serious concerns, as well as organizational policies, procedures and mechanisms to raise issues;
• Costs, risks and potential liabilities to the organization for not responding to appropriately to concerns raised by employees, as well how individuals who fail to support an anti-reprisal environment will be held accountable;
• Identifying forms of retaliation or other behaviors that contribute to a chilled environment, such as bullying, isolation, exclusion from formal and informal meetings, as well as measures such as coaching for not being a “team player,” poor performance reviews, work transfers, demotions, or other personnel actions.

 

Each of these best practices have within them several nuanced components that warrant elaboration to be effectively integrated into an organization’s policies and processes. But organizations committed to building a culture that values and protects the rights of employees to identify problems would do well to start by examining their current culture against these best practices to assess how existing policies, procedures and practices support, or detract, from creating a workplace that encourages employees to exercise their voices without fear of reprisal. Empowering all government employees to identify problems by instituting robust mechanisms to address concerns and prevent retaliation enhances trust, engenders loyalty, and promotes the long-term best interests of our public institutions and the public they exist to serve.