Ask ETHIX360: is a Question & Answer series from ETHIX360, meant to address public questions about the world of corporate compliance.
When this question came up, my first response was “wow, what a loaded question!” Mainly because there is a much to unpack to address this, so let’s try to break this question apart and discuss it.
There are a couple details in here that we can start with. First, “protected from retaliation.” This is complicated for a number of reasons, but mainly if you are a whistleblower you are protected from retaliation for the act of reporting in most states, but it is not blanket protection. For example, if you have breached another policy and that is discovered, you can be disciplined for that infraction. At times, if your identity becomes known, you can experience investigation into other areas that may result in discipline and it can be difficult to prove that the investigation resulted directly as retaliation for your whistleblowing.
Second, let’s talk about the term whistleblower. More importantly, is to understand the definition of protected activities related to whistleblowing. One blog doesn’t allow me to discuss all potential areas, but let’s touch a couple to use as examples because this is a complex area, and not all are recognized by all courts especially when a ruling broadens the Sarbanes-Oxley definitions (the origins of whistleblower protection).
The first example, came from a case where a female employee learned that a male employee doing essentially the same job was paid more. She told her manager that she had learned this and if her salary was not raised, she intended to file suit under the Equal Pay Act. Three days later she was terminated for a “threatening act.” Under Title VII of the 1964 Civil Rights Act, opposition to an act believed to be unlawful discrimination is considered a protected activity. Now in this case the reporter did not have an expectation of anonymity because they came forward directly to their supervisor, however, they did have a an expectation of protection from retaliation. That expectation was based on a reasonable belief that they were acting in opposition against prohibited discrimination. Important to note here, is that it is critical to keep your cool as certain types of impulsive conduct are not protected (i.e. threatening a lawsuit is protected activity but physical threats are not).
In another example an employee at a company that performed clinical tests for pharmaceutical companies noticed that some clinicians were violating FDA standards for Good Clinical Practice by falsifying data during trials of drugs for major clients. The employee complained to multiple supervisors over a several month period, but the company did not investigate or take corrective measures. The employee named specific co-workers in her complaints and was terminated on the grounds that she was not a team player. The Department of Labor ARB (Administrative Review Board) found that this was protected activity, and that decision widened the definition of protected activity under SOX (Sarbanes-Oxley. Prior to that, the standard had been a requirement to definitively and specifically implicate a violation of law. In this case the ARB ruled that although the complaint did not allege the company was committing fraud against shareholders, that their action followed the intent of SOX by saying the employee reasonably believed the activity constituted fraud or a violation of security law.
These two examples both share employer behavior that was found to be retaliatory. But the question raised has a further implication about anonymity. Many companies (by analyst estimates well over 60% of US businesses) do not have a method of reporting that an employee could reasonable assume protects their anonymity. Many do, and in fact for some industries, it is mandated that they offer anonymous whistleblowing services.
So as an employee, how do I know that my anonymity is protected especially if I am a least partially assuming protection from retaliation by maintaining my anonymity? First, take the time to understand the communication mechanisms in place to report – is it a third party service? Does the service provide the ability for me to get updates on the progress of my case and to offer additional information or insight to the investigation while maintaining my anonymity?
Lastly, remember that whether or not your allegation is made anonymously or not, that is not the sole factor in determining the legality or illegality of retaliation. More than you wanted to know? Sorry for geeking out a bit…it’s what we do.