The best way to stop retaliation is to prevent it from happening. It is critical that whistleblowers recognize and understand what retaliation looks like in order to avoid, prevent, and stop it from happening. Unfortunately, most whistleblowers will face some form of retaliation from their employers, peers, and colleagues after they blow the whistle. Yet, whistleblower retaliation does not always take the same form. Retaliation can range from outright termination of contract, forced relocation in company, pay deductions, social ostracism, and more.
According to a study from Bradley University professors, Dr. Tanya Marcum and Dr. Jacob Young, published in the DePaul Business & Commercial Law Journal, nearly two thirds of whistleblowers had experienced the following forms of retaliation: 69% lost their jobs or were forced to retire; 64% received negative employment performance evaluations; 68% had work more closely monitored by supervisors; 69% were criticized or ostracized by coworkers; and 64% were blacklisted form getting another job in their field.
Whistleblower stories are rife with these unfair retaliatory actions. Almost every whistleblower has a similar story. Many are blindsided as they believed their superiors would correct the oversight, not punish them for speaking out. Before coming forward, whistleblowers must weigh the inherent risk of exposing fraud.
Look at the case of NWC Whistleblower Leadership Council chairwoman and FBI whistleblower, Jane Turner, who blew the whistle on gross oversight within the FBI. In retaliation for exposing FBI failures, Turner was removed from her position and transferred to an office without a desk or a chair. She was subjected to fitness for duty reviews while coworkers were instructed to avoid and ignore her. Eventually, she was removed from service for an entire year.
She believed she would be safeguarded by her superior’s similar views on the misconduct brought forward. Instead, she faced harsh retaliatory measures. These experiences can be demoralizing and damaging to a whistleblower’s reputation and livelihood. However, many whistleblowers are firm in their belief that if given the same circumstances, they would blow the whistle again.
Whistleblowers are not always guaranteed protection from reprisal and retaliatory language. When superiors take to the offensive, it can place whistleblowers in jeopardy – especially when the retaliator in question is the subject of the disclosure. However, there are tools in place that can protect whistleblowers from retaliation before they even blow the whistle.
Whistleblowing can be a daunting task for those considering confronting fraud and misconduct. While there exists a vast framework of laws, laws for whistleblowers vary from agency to agency and sector to sector. In many instances, these protections are inadequate.
Many corporate whistleblowers who suspect fraud or misconduct first think to report to a supervisor, a company hotline, or a corporate compliance department. Many companies also advertise “hotlines” for employees to report fraud, misconduct, and safety issues. However, whistleblowers should avoid these internal reporting channels. While hotlines often promise confidentiality or anonymity, companies may still be able to identify the employee based on the complaint, and employees who report their concerns internally are often not protected from retaliation.
Whistleblowers should remember that internal reporting channels exist to benefit the company, rather than the individual reporting misconduct. Whistleblowers should not make any disclosures internally until after they consult a whistleblower attorney. With the help of a whistleblower attorney, whistleblowers can report to law enforcement.
Meanwhile, for federal employees, the avenue to blow the whistle can be labyrinthian and confusing. There is no single federal agency that oversees whistleblower complaints and protections. Whistleblowers are supposed to look to the Merit Systems Protection Board (MSPB), which was created to defend whistleblowers from unfair retaliatory action in the 1970s. However, the MSPB has not had a quorum since January 2017 and is currently plagued with a massive backlog of cases. Without oversight from a governing board, whistleblowers may be at greater risk of losing their cases.
Federal employee whistleblowers can also turn to the US Office of Special Counsel to address their complaints. However, while this office can field complaints from a whistleblower, it does not have the ability to enforce rulings on the agencies in a whistleblower’s complaint.
Due to the patchwork protections at play, both federal and non-federal whistleblowers rely on other statutes and legislation to protect themselves. Many of these laws can mitigate the effects of retaliation through anti-retaliation provisions and financial rewards. These include the False Claims Act for fraud related to government contracting, the Dodd-Frank Act that assists with securities and commodities fraud, or the IRS whistleblower law, which assists with the prosecution of tax fraud.
Whistleblower protection is one of the National Whistleblower Center’s key priorities. Educating potential whistleblowers on best practices to reduce risks to them and their families can prevent severe whistleblower retaliation. NWC’s Action Alert Network advocates for vital whistleblower legal protections to support the brave individuals who take tremendous risks to expose fraud, waste, and abuse. You can join the NWC Action Alert Network here.
Protecting yourself and your information can be a crucial step in successfully blowing the whistle and potentially preventing undue whistleblower retaliation. As whistleblowers can jeopardize themselves before they even get the chance to report wrongdoing, NWC urges whistleblowers to safeguard themselves online before going to the proper authorities. Read our cybersecurity best practices for whistleblowers to learn more.
Our board chairman and co-founder, Stephen Kohn, has also authored 10 Things to Know Before You Blow the Whistle, a crash-course guide on safeguarding yourself before fraud is reported. These ten tips provide fast, but in-depth knowledge for those about to blow the whistle. For extended guidance and information, consult the New Whistleblower’s Handbook, also authored by Stephen Kohn.