Last week, we had wonderful talk entitled Blowing the Whistle on Whistleblowing Laws. Attorney Charles L. (Chuck) Howard is one of the few attorneys in the U.S. with extensive expertise in the legal issues of ombudsmen. Howard has a national practice in representing organizational ombudsmen at universities, multinational corporations, and research institutions. His new book, entitled The Organizational Ombudsman: Origins, Roles and Operations–A Legal Guide, was just published by the American Bar Association (ABA) and is the nation’s definitive resource book about ombudsmen, mediation, and their impact in the workplace.
In this presentation, he explored how fear of retaliation limits the effectiveness of whistleblower laws and policies. There are hundreds of whistleblower laws in the United States that provide incentives for people to report misconduct and prohibit retaliation against them for doing so. While recoveries from laws like the False Claims Act are significant, the perception — and often the reality — of what happens to whistleblowers who do come forward is that they pay dearly for their actions. In addition to trying to reward whistleblowers, why are we not also looking for better ways to help people address workplace conflict or misconduct without having to be a whistleblower? Howard argued that an organizational ombudsman can help an organization address this gap between encouraging the reporting of misconduct and protecting those who raise issues.
Several of my students’ comments about the talk are below:
When a classmate asked me about the Chuck Howard presentation, all I could say is that “the system has failed, and I have no idea how to fix it.” Howard argued that the current whistleblowing procedures are ineffective. Businesses have inadequate internal procedures for whistleblowing, which is why the claim makes it to the legal process. However, Howard spent most of his time explaining that the whistleblowing laws are also ineffective. The main flaw is that it is still too easy for employers to retaliate against whistleblowers. Because we live in an adversarial system, once an individual blows the whistle on misconduct in the workplace, he or she will inevitably soon find themselves in a lengthy, expensive, and stressful litigation process. Howard painted a dark picture of how this litigation process tragically changed the lives of many whistleblowers. He concluded the presentation by offering the ombudsman model as a solution to the problems of whistleblowing laws, but, while good in theory, it would seem that the model’s success will depend on a firm putting forth sound internal rules and procedures around the ombudsman position. Do firms have the right incentives to adopt such a model?
Is whistleblowing an ethical obligation to ruin your career? After last week’s talk, it is frightful to think that at some point, I may be in the same situation that many unfortunate, yet dutiful, employees have found themselves in. Many careers mandate that certain unethical or unsafe conduct be brought to the higher-ups’ attention. This is exactly what many people have done. In fact, had they not, they would have faced consequences with their own employers or professional associations. That being said, it is remarkable that some whistleblowers are prosecuted, or threatened with prosecution, after choosing to do the moral and legally correct thing. If the laws are not actually protecting what is most important to a professional, reputation, then what is the incentive to blow the whistle, particularly in matters where someone is unsure if a violation or wrongdoing is actually occurring?
Cross posted at Indisputably.