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June 24 --Whistle-blowers in the HR department perform a vital function, but their road is not an easy one, Anne Marie DePaul, a former vice president of HR, said from personal experience in a June 23 presentation at the Society for Human Resource Management's annual conference in Orlando, Fla.
DePaul said she blew the whistle on the president of her then-employer in California, who wanted to remain on the books as a contractor although he was legally obligated to be an employee.
On June 16, 2008, she was fired, although the president became an employee the same day, DePaul said. She sued the company for wrongful termination and retaliation. According to DePaul, the case took two years to come to a trial, during which she gave six depositions and had to undergo a mental exam because after her firing she had gone on antidepressants and anxiety medications. She added that her son was very ill and her husband was unemployed when she lost her job. There was a six-week trial, where the company called 28 witnesses, DePaul said. “I learned things about myself I never knew before,” she added drily.
The case was ultimately settled in June 2012, four years after her firing, DePaul said.
Whistle-blowers “are not required to follow the chain of command with disclosures,” DePaul said. A 2007 study of 5,400 companies by PriceWaterhouseCoopers found that internal whistle-blowing is “the most effective source for detecting corporate fraud,” she added. “We should welcome whistle-blowers because they are telling us something that needs to be fixed. They know what's happening.”
Unfortunately, DePaul said, no uniform whistle-blower law applies in every state. For example, the federal False Claims Act, which dates back to the Civil War, applies only to government. A recent federal law defends whistle-blowers in the field of food protection, DePaul said, but “there may not be a national law that covers the issue you are raising.”
Before taking action as a whistle-blower, DePaul said, HR professionals should:
• Do their research and clarify the facts.
• Document everything, preferably in e-mails. For example, a critical meeting where the potential whistle-blower could not take notes can be memorialized in an e-mail afterwards.
• Adhere to the law and company policy. “Make sure you're only reporting information you learned in the course of your work; be careful how you obtain information,” DePaul said. Company policy sometimes holds up in court, but sometimes it doesn't--it depends on the severity of the issue.
• Weigh the costs and benefits.
• Consider your personal situation.
• “Prepare yourself, protect yourself, and then brace yourself.”
From the employer's standpoint, more is required than just having a nonretaliation policy, DePaul said. There should be no tolerance for retaliation or bullying, she said.
In the case of an employee who might turn whistle-blower but is performing poorly, document the poor performance and convey it immediately, she said.
To avoid retaliation claims, “be wary of subtle actions” and “watch out for temporal proximity” between a whistle-blowing complaint and an adverse action against the complaining employee, DePaul said. Three months, roughly, is enough time in the eyes of the courts to remove this concern, she said.
Finally, DePaul advised, “maintain a positive culture; praise employees for raising concerns.”
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