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An overview of whistleblower laws-including protections from employer retaliation under federal environmental and nuclear statutes, the False Claims Act, and the Sarbanes-Oxley Act-and the unique elements of mediating these claims.
In 2002, three highly visible whistleblowers became Time Magazine's "People of the Year."1 They were Sherron Watkins of Enron, Cynthia Cooper of WorldCom, and FBI Special Agent Coleen Rowley. Each was a direct participant in exposing scandals in her organization. Their media status-along with the recent Sarbanes-Oxley statute - reshaped the American view of whistleblowers and encouraged more employees to come forward when employers retaliate against them.
This article first provides an overview of statutory whisdeblower protections and the specifics of several whisdeblower laws. Next it discusses using voluntary mediation to resolve these disputes, which in most cases takes place after a legal action is commenced alleging employer retaliation. In addition, it discusses some unique aspects of whisdeblower mediation, including the need for even more than the usual amount of patience and sensitivity to the claimant's emotions.
Who Are Whistleblowers?
Employees who believe they have uncovered unlawful conduct by their employer have four choices: remain silent, resign to distance themselves from the unlawful activity, report their concerns to the employer, or go public. Those who take either of the last two routes are considered whistleblowers. In general, there are three types of employees who become whisdeblowers: senior executives (e.g., vice presidents, company attorneys), professionals (e.g., quality control technicians, training instructors, engineers and human resource managers), and hourly workers (e.g., electricians and maintenance workers).
Most whisdeblowers choose to report their concerns to the company, rather than go public.2 They are considered "reluctant whistleblowers." Their decision to deal with the problem internally is motivated by their loyalty to the organization. They seek reform and assume that the highest levels of management will embrace that idea once they understand the situation clearly. These employees go public only as a last resort.
Employers tend to view whistleblowers as disloyal and insubordinate, even when the whisdeblower does not take the matter outside the company. Those who go public are often reviled by the employer.
WTien co-workers learn that someone they work with has made an internal complaint of illegality by the company, they may behave hostilely to the...