Whistleblowing and Ethics Issues
Author: Marta Moakley, XpertHR Legal Editor
The enforcement landscape relating to whistleblowing and retaliation protections has changed radically in the past decade. The enactment of the Sarbanes-Oxley Act of 2002 (SOX) and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank); the renewed focus by federal enforcement agencies on the False Claims Act, yielding record recoveries; and the creation of Offices of the Whistleblower at the Securities and Exchange Commission and the Internal Revenue Service, among other agencies, have led to increased compliance requirements for employers.
State legislatures across the nation and federal and state courts continue to experiment with approaches to ensure safe, compliant and productive workplaces while effectively addressing employee concerns in a timely fashion.
XpertHR has a variety of Tools and resources to assist employers in ensuring that all legal and ethical guidelines protecting whistleblowing are continually met.
Effective management of whistleblower policies, diverse employees and internal compliance programs may be comprised of any number of discrete tasks.
Employers may consult the following XpertHR Tasks in tackling specific compliance concerns:
Addressing whistleblower complaints requires both proactive planning and reactive processing on the part of employers. Compliance may require the implementation of an internal ethics program for employers subject to the requirements of the Sarbanes-Oxley Act of 2002. Employers should create an atmosphere of collaboration and innovation, and managers and supervisors should serve as models of integrity for subordinates. Employee participation in workplace decisions, such as through an employee comments program or similar initiative promoting effective workplace communications, may increase employee motivation and reduce external complaints.
Step-by-step guidance for employers addressing those concerns is available through the following How Tos:
- How to Promote Integrity in the Workplace and Protect Whistleblowers
- How to Implement an OSHA Whistleblower Program
- How to Handle an Employee Who Has Blown the Whistle
- How to Implement an Ethics Program
Supervisors need to be knowledgeable regarding effective techniques for managing whistleblowers, including any necessary disciplinary measures.
XpertHR offers the following Supervisor Briefings to assist employers in ensuring consistent and ethical management practices across the organization:
Policies and Documents
Employers should ensure that their internal policies are consistent with federal and state retaliation protections. In addition, employers may wish to consider implementing certain policies that would encourage internal whistleblowing and discourage external leaks of confidential business information.
XpertHR provides the following model documents and forms, in addition to a host of other policies with specific antiretaliation clauses:
- Whistleblower Policy
- Open Door Policy
- Retaliation Policy
- Responding to Employee Concerns Policy
- Media Relations and Press Interviews Policy
- Form for Employees Regarding Perceived Health or Safety Violations
- Disciplinary Investigation Form
Employment Law Manual
Protections against employee retaliation and specific whistleblower rights appear in a number of federal and state laws. In addition, some states have dedicated whistleblower protections for specific employee populations or for various types of protected employee activities. Employers should consult particular state requirements for required postings related to whistleblowing.
XpertHR's Employment Law Manual provides comprehensive information and resources to assist employers in understanding applicable laws and regulations, available at the following links:
- Employee Discipline > Whistleblower Protections
- Employee Liability Concerns in Employee Management > Whistleblower Liability
- HR and Workplace Safety (OSHA Compliance) > OSHA Whistleblower Statutes
- Employee Communications: State Requirements
With the large number of resources available regarding whistleblower laws and regulations, it is sometimes difficult to pinpoint each applicable statute's particular filing requirements and related deadlines.
XpertHR's handy Quick Reference chart lists federal whistleblower statute requirements:
The Occupational Safety and Health Administration (OSHA) administers the requirements of 22 whistleblower statutes under its Whistleblower Protection Program.
Detailed legal analysis of whistleblower protections found in several OSHA-enforced statutes are available in XpertHR's Legal Insight Tool to provide employers a greater understanding of the various legal requirements:
Best Practice Manual
Because the legal requirements regarding whistleblowing, ethics compliance and retaliation continue to evolve, an employer may wish to engage in best practices when implementing internal policies and procedures.
XpertHR offers detailed information regarding whistleblowing in a dedicated section of its Best Practice Manual:
An employee who has voiced concerns in the workplace may feel retaliated against if he or she becomes the subject of a disciplinary action. In addition to citing traditional whistleblower statutes (e.g., the federal False Claims Act and its various state counterparts) in legal claims, employees have filed lawsuits against employers under various employment laws' antiretaliation provisions, including the Family and Medical Leave Act's enforcement provisions and, for public employees, the First Amendment.
XpertHR offers the following Law Reports to assist employers:
- False Claims Act Whistleblower Must Be Original Source of Information
- You're Fired! Legitimate Corporate Restructuring Is an Appropriate Reason to Terminate an Employee Shortly After FMLA Leave
- Statements Made by Government Employee Pursuant to Official Duties Are Not Protected by the First Amendment
Whistleblowing activities stimulate debate among HR professionals and regulators as to which management approaches work best to ensure a collaborative and ethical workplace. In addition, whistleblowers are often polarizing media figures. Employment law blogs can be an excellent conduit for a less formal discussion of workplace challenges.
XpertHR's Employment Intelligence blog includes the following entry concerning an organization's response to whistleblowing:
- What employer actions are prohibited by OSHA's Whistleblower Statute?
- What employee activities are protected by OSHA's Whistleblower Statute?
Related Glossary Terms
- SEC (Securities and Exchange Commission)
- OSHA (Occupational Safety and Health Administration)