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Got the Guts to Be a Whistleblower?

The World Bank recently released the results of an internal study which suggests that 46% of respondents lacked confidence that they could report unethical conduct “without fear of reprisal.”  Assuming the sample size is a fair cross section of all employees, that’s a pretty staggering number.  Half of an organization’s employees think that speaking up about something improper will get you in trouble, or worse still, will cost you your job?

What this suggests – or confirms – is that levels of trust in large institutional settings are low indeed.  Large hierarchical employment structures (the basic model we’ve been using since the Industrial Age) are based on power relationships.  Someone is the boss, and the boss runs the show.  The power to fire, the power to shame, the power to ostracize all too often lead to silence in the lower ranks.  Why speak up if the boss might misconstrue your intentions?   The need to survive, and the need to remain included in the work group of peers, run deep.   The larger and more hierarchical the organization, the more work it takes for managers to overcome these basic fears on the part of employees – the fear that truth-telling will cost you dearly.

The same World Bank study also claims that the 46% figure is “31 points below an external benchmark set for private enterprises such as Goldman Sachs” and other financial institutions.  Say what?  Big corporations can boast that 85% of their workforces feel free to report fraud or misconduct to superiors?  We doubt it.  More likely this is just the World Bank’s way of telling itself that it needs to do better.

The real questions are:  Is the 46% number at all surprising?  And do we think that we’d see similar numbers across industries, and in for-profit, not-for-profit, and government sectors?

No, it’s not surprising  to us.  And we strongly suspect that if similar studies were conducted across all sectors, you’d see similar results.  We often see potential clients who tell us their tales of trying to do the right thing within their organization and being shot down.  We see others who are simply too afraid to go that route and want some advice before doing so.

Even in institutions where management is serious about compliance, the reality is still clear:  there will always be career-altering choices that employees face when deciding to report fraud, abuse, or unethical behavior on the part of higher ups, particularly if it involves the employee’s immediate supervisor.  What the 46% number reflects is nothing more than a good understanding of human nature:  the same people who push the envelope in their business affairs may not be the most upstanding in dealing with whistleblower complaints.  Revenge  as well as the instinct for self-preservation, remains deeply embedded in the human psyche.   It takes an enlightened mind not to keep score of those who have crossed you  or to see that in the long run it will benefit you to behave ethically; it takes a particularly enlightened mind to forgive and accept rather than punish.  As we know, the people who get to the top are not always enlightened (there are of course some wonderful exceptions to this statement).  Sometimes they may simply be smart, or aggressive, or relentless, or single-minded.  And with corporations having a statutory duty to maximize shareholder value, it’s all too easy to see a whistleblower as a problem rather than a cure.   It’s easier to make the messenger disappear than to address the problem, particularly if addressing the problem is going to eat into short-term profits or other management metrics.

This is why Congress has passed anti-retaliation provisions in the False Claims Act and many other whistleblower statutes.  Because these problems are systemic.  And they reflect the darker side of human nature.

And this is why we are whistleblower lawyers.  Because it takes courage to stick your neck out and risk your career for the greater good.   Representing people who have done the hard, soul-searching work to sort through the conflicting values that their lives and careers have presented is an honor for us.  We routinely tell prospective clients “you don’t have to do this.”  And we salute the ones who go forward anyway.

The milk industry has a catchy advertising slogan, with local heroes sporting milk moustaches and the phrase “Got Milk?”   Maybe our profession should have an ad that says:    “Got Guts?”

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