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How To Avoid Whistlblower Retaliation Claims - Part 1

March 03, 2008

This is the first of a two-part article on avoiding whistleblower retaliation claims.

There are two simple ways to avoid whistleblower lawsuits. The first is to limit or eliminate the underlying illegal or improper conduct that could give rise to allegations of wrongdoing that can trigger whistleblower status. The second is to treat whistleblowers properly if and when such conduct is alleged. Here are five steps that can help employers limit their liability as to whistleblower retaliation claims.

1. Establish an ethics policy. An ethics policy is essentially a catch-all policy that states that the organization will comply with all applicable legal duties it may have. A good ethics policy also contains a complaint reporting procedure, encourages employees to report misconduct, and provides for disciplinary consequences for employees who do not comply.

2. Establish a complaint reporting procedure. A complaint reporting procedure should be part of an ethics policy. However, employers should also have a stand-alone complaint reporting procedure. It should contain multiple reporting outlets at a variety of levels. An example would be establishing an anonymous 800 number through a contract vending service.

3. Training on ethics and applicable laws. After establishing an ethics policy, employers should train all employees on the content of the policy, as well as any unique statutes or regulations applicable to the organization. The training should emphasize special legal duties imposed upon the employer and the consequences for failure to discharge those duties.

4. Additional training for the management team. In addition to general training on ethics and compliance with applicable laws, employers should periodically train supervisors and managers in compliance with applicable employment laws. Part of this training should include recognizing whistleblower activity and responding to that activity.

5. Procedure for responding to whistleblower complaints. There are a number of steps employers should take to effectively respond to whistleblower complaints. These steps include recognizing the complaint, investigating the complaint, documenting the investigation, remediating the complaint, debriefing the complainant, establishing a game plan for going forward, and following applicable policy. We will discuss these steps in more detail in a How to Avoid Whistleblower Retaliation Claims – Part 2.

Given the broad scope of whistleblower protection, employers must be very wary when employees report or allege potential wrongdoing within the organization. As such, employers are well-advised to take a proactive approach, develop policies, and train employees before complaints surface. This approach will help minimize liability if an when a whistleblower challenges actions within your organization.

Information courtesy of Labor and Employment Law Blog

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