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June 22 — Employers should adopt a plan for dealing with the growing number of whistle-blower claims, Jason Geller, a partner at Fisher & Phillips in San Francisco, told a group of human resources professionals.
Whistle-blowing has increased partly because of “monetary incentives” in some laws that reward employees for disclosing wrongdoing by their organization or government agency, Geller said June 21. For example, he said, the Securities and Exchange Commission has “a very robust whistle-blowing program” through which whistle-blowers “can receive millions” of dollars.
Another factor in the growth of whistle-blowing includes stepped-up enforcement by some government agencies—particularly the Equal Employment Opportunity Commission, the Labor Department's Occupational Safety and Health Administration and the National Labor Relations Board.
Generally, employees are protected from retaliation for disclosing acts they think are illegal as long as “there's a shred of basis” for the claims, according to Geller. He was speaking at the Society for Human Resource Management Annual Conference and Exposition.
Even if an underlying whistle-blower claim is “malarkey,” an employee still could bring a retaliation claim against the employer, Geller said, because courts have taken “a broad and expansive view” of the definition of retaliation. Therefore, employers should handle whistle-blowers carefully “so you don't create a lawsuit” where otherwise none would exist, he said.
An employer that loses often has to pay the plaintiff's attorneys' fees, Geller said. “These fee-shifting rules” encourage people to file lawsuits, he said.
The adverse actions that could be used to show retaliation include discipline, demotion and termination, Geller said. “Minor trivial things” aren't enough, nor is a mere threat of adverse action, he said. A transfer could constitute an adverse action, depending on the specific facts, he said.
In determining whether retaliation occurred, courts would consider the length of time between the employee's activity and the adverse action and how other employees were treated, Geller said. An employer must consider “how is this going to look later” before taking an adverse action against the employee, he said.
“It's key to educate your folks on the front lines” in how to act if government inspectors show up to investigate the whistle-blower's allegations, Geller warned. An employer must be very careful about taking any type of adverse action against any employee who answers questions during a government investigation, he said.
He also recommended that employers “be very organized in one of these investigations,” such as by promptly turning over neat stacks of documents.
When conducting an internal investigation, an employer should “only involve the people who need to know,” Geller said.
If conducting investigations is part of an employee's job duties, the employer should ensure the person's job description includes that responsibility, he said. That way, the employee can't argue that the employer is retaliating against him for conducting an investigation, because the employer would have instructed him to perform it, Geller said.
If an employer has done an “intervening nice thing,” such as giving the whistle-blowing employee a bonus, a later advese action by the employer is less likely to seem retaliatory, according to Geller.
Geller said it also helps if an employer has “a really robust complaint procedure.” A hotline also is a good idea, he said.
In addition, if an employer hears about co-workers shunning a whistle-blowing employee, “you want to get in there and shut it down,” Geller said.
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