The Person of the Year: The Whistleblower

imagesCA1ZILD8In keeping with “tradition” (even if it is a one-year tradition), I like to start out the year looking back on the person of the year in 2012.  As we look through the developments of 2012, there is no question of the increasing importance – and protection of – whistleblowers is the most important trend from 2012.

The government is always looking for new sources of information to prosecute companies and individuals.  For many years, so-called “disgruntled” employees were the primary sources of information.  The only established whistleblower program has been qui tam relators involving false claims.  Whistleblowers are a way of life when dealing with government contracts and spending.

On Capitol Hill, there is a strong bi-partisan constituency which aims to protect whistleblowers and encourage whistleblowers as a mechanism to improve the quality of government operations.  For many years, the focus of whistleblower legislation and programs was to enhance the protection of whistleblowers.  Much of that agenda has been enacted into law.

The new and cutting edge area of whistleblower policy is creating incentives and reward programs for whistleblowers to report wrongdoing.  It does not take a rocket scientist to figure this out – if you offer people money, they will respond.   The same goes for whistleblowers.

The sea change in whistleblower policy occurred with Dodd-Frank which created the SEC whistleblower office and program.  It opened up a reward program and created government-funded incentives for reporting securities violations, including FCPA violations.  A cottage industry of whistleblower attorneys and whistleblowers is the growing trend.

Corporate interests recognized the impact of such a program.  In fairness, companies raised serious concerns about whistleblowers incentives to report violations of law and corporate policies internally before running to the government to report such concerns.  Companies have a good point but unfortunately they lost the battle and are now fighting the rules in court.whistleblower recoveries

The SEC’s recent annual report confirmed the rise of the whistleblower.  In the first year, the SEC received approximately 3000 whistleblower tips.  Interestingly, only 3.8 percent or approximately 115 tips related to FCPA issues.  The most common complaints related to corporate disclosures and financial statements (18.2 percent), offering fraud (15.5 percent) and manipulation (15.2 percent). Even insider trading allegations were made in 6.3 percent of the complaints.

It is clear that perhaps the greatest risk that companies now face is whistleblowers.  Many companies understand that risk but many do not know how to respond.  Companies can no longer rely on outdated whistleblower programs, which often incorporate human resource personnel, policies and practices.  A new proactive approach is needed.

Companies need to implement the following:

  • A detailed whistleblower protocol which establishes detailed policies and procedures for dealing with whistleblowers.  The protocol should be built on a multi-disciplinary approach – legal, compliance, human resources, and auditing offices.
  • A specific whistleblower triage program for identifying and prioritizing whistleblower complaints in order to investigate, assess and respond to potential issues.
  • An internal investigation policy and protocol for preliminary assessments of potential whistleblower complaints.

Whistleblowers are here to stay and create unique and significant risks.  Companies need to respond to these risks and plan for the “whistleblower era.”

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3 Responses

  1. Mikhail Doronin says:

    It is interesting to know how many tips come from abroad. I mean foreign whistleblowers.

  2. LAQ says:

    Hi Michael, I would like to comment on your article regarding whistle blowing. This as part of an assignment for the Open Polytechnic.
    While I agree with the recommendations that companies need to take a proactive approach and prepare for the whistleblowing trend, I would like to critically analyse the content of the article, as it seems that the conclusion stating that whistleblowers are risks is not fully supported by the previous premises which although they give a general understanding of the whistleblowing growing trend, they do not specify the reasons why whistleblowers are seen as risks.
    The implied negative connotation to whistleblowers troubles me and while some organisations would agree with this assertion by saying that whistleblowers cause problems and are a threat to businesses, we should consider that whistleblowers can also contribute to improving business practices. To prove this argument lets analyse concepts of whistleblowing versus risk.
    Risk, as defined by the Oxford English Dictionary, is the “exposure to the possibility of loss, injury, or other adverse or unwelcome circumstance…”. The meaning of risk refers then to the potential that an action or inaction could lead to losses or undesirable outcomes. In this sense, it is necessary to ask is the whistleblower a real risk to businesses? Do they generate losses or undesirable outcomes? Or are they rather another member of the business environment, who could in fact offer opportunities for improvement?
    Analysing the role, a whistleblower is a person who reports alleged serious wrongdoing occurring in the organisation this person works for. The principle of reporting a wrongdoing, an illegal action, a fraud could hardly be identified as having negative consequences to businesses, after all, a wrongdoing is picked up and reported to be amended, and that is morally correct thing to do. In fact, in many cases it is the whistleblower who puts his own job at risk and has to confront retaliations just for coming forward, still in these cases, the burden is for the whistleblower not for the organisation he belongs.
    There is however a ‘double standard’ which per se challenges the risk label: internal whistleblowing is often seen as a positive action, to the point organisations encourage it because that helps them rectify wrongdoing within the organisation, Ravishankar (2003). So based on the fact that a risk refers to the probability of generating a loss or an undesirable consequence, internal whistleblowing will not be a risk. The approach is different for external whistleblowing, where disclosures are made to the general public, government or media, and they are generally perceived as negative because of the repercussions to the business involved: investigations, disrepute and even prosecution. With this difference of perception between internal and external whistleblowing it is not possible to conclude that all whistleblowing is a risk to businesses.
    Another issue is that whistleblowing is often seen as an act of disloyalty towards employers; perhaps this is where organisations see a potential risk, in the lack of loyalty. In his publication “Whistleblowing and Employee Loyalty’, Duska examines the issue of loyalty and concludes that employees have no loyal obligation to organisations as organisations are not proper objects of loyalty because of the lack of mutual enrichment required in the relationship to involve loyalty, the relationship between employee and organisation is merely contractual, thus the argument of loyalty, or the lack of it, is irrelevant.
    In the same publication, Duska mentions that whistleblowing, in certain circumstances is morally expected, he explains for example, when it is related to serious wrongdoing; if morally expected then surely whistleblowing does not generate undesirable outcomes to be a risk or a threat to businesses.
    Richard T De George (1990) provides five conditions as a standard theory to assess when whistleblowing is considered morally justified: when the wrongdoing is to cause serious harm, when reported to superiors and no corrective actions had been taken, when internal procedures within the organisation are exhausted, when there is evidence of the wrongdoing, and when there are good reasons to believe the harm caused can be prevented at reasonable cost.
    According to De George, when these five conditions are met then the person who blows the whistle has carried out his moral obligation and therefore his actions are morally justified. Because the whistleblower is acting to prevent a potential harm and to correct wrongdoing that will not be corrected otherwise, the whistle blower is aiming to minimise a real risk; his goal is therefore to get an overall positive outcome to all, and so justified whistleblowing fails to be categorised as a risk.
    You could argue this is not the case for the business itself, which will endure negative results, but analysed under a consequential point of view, the whistleblower would have acted morally in reporting a wrongdoing, and this would lead to amend the situation, which is a positive outcome for the majority: the society in general.
    You could also argue that this rationale does not apply when whistleblowing is not morally justified, that is, when it does not comply with the five conditions included in the standard theory. In your article you mention that incentives offered to whistleblowers could lure them to skip internal channels and to disclose information straight to government agencies; in this case for example, the condition of ‘exhausting internal procedures’ is not met and therefore, based on the standard theory, whistleblowing would not be morally justified. This, however, does not automatically imply that unjustified whistleblowing is a risk to businesses. Even whistleblowing that is considered morally unjustified can help to identify room for improvement: it could result in businesses having to revise internal systems, having to put policies in place to ensure escalation processes exist, and having to re-think how to better capture information internally; in other words whistleblowing could force organisations to lift their performance to be better prepared for the future, which again will benefit the business environment and the society in general.
    Based on these arguments I cannot agree that whistleblowing represents a risk to businesses. The fact that whistleblowers are here to stay is a reality, so instead of seeing them as risks or threats to businesses, a more valuable approach would be to identify them as allies who will bring opportunities to improve business practices, which in the long run, will benefit the whole society.