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The Corporate Whistleblower's Survival Guide

Berrett-Koehler Publishers, Inc.

Chapter One

The decision to blow the whistle may be among the most significant choices you will make in your life. We want to help you make the best decision possible.

This book seeks to provide full disclosure of the many risks you are considering. It will explain your rights under the law, outlining both the protections provided for private-sector employees under Sarbanes-Oxley as well as the patchwork of other statutes. We will explore the challenges you face when relying on your legal rights. We will also describe what we have learned about patterns of institutional response against employees who step forward to speak the truth about corporate misconduct.

If you decide to blow the whistle, fully informed of the risks, we want you to do it in a smart and strategic manner that will serve your own interests and lead to positive change. You may want to remain anonymous, or you may choose to go public. You may decide to take your story to the media, or you may prefer to talk to public officials with the power to correct the problem. Your decisions will affect your future, your family, and your career. A well-planned strategy offers you a chance of succeeding. Unplanned and uninformed dissent could be the path to professional suicide.

What Constitutes a Whistleblower Case?

Through our work with whistleblowers over the years, GAP has learned which strategies are most likely to be successful and which are recipes for frustration or failure. GAP has three primary criteria for evaluating potential whistleblower cases:

* Is the wrongdoing at issue substantial enough to warrant the risks of reprisal and the investment of human and financial resources to expose it? * Are the allegations reasonable, and can they be sufficiently substantiated? * Can the disclosure make a difference beyond the whistleblower's merely risking retaliation?

Facing Conflicting Values and Goals

Your decision about whether and how to blow the whistle is intensely personal. It means making a choice between deeply held and conflicting values. To illustrate, our society celebrates team players and snubs naysayers. Yet we also admire rugged individualists and have contempt for bureaucratic sheep who simply go along to get along.

Similarly, no one wants to be viewed as a squealer or tattletale. A common synonym for an informant is a "rat." But we have equal contempt for those who look the other way, do not want to get involved, or make a conscious choice to see nothing. "See no evil, hear no evil, speak no evil" means we have sacrificed our humanity. Consider the words of one nuclear whistleblower: "People have to stop seeing whistleblowers as tattletales ... I don't know what you do, living in a culture that thinks if you have standards that you're a tattletale."

The conflict of values extends to other aspects of our identity as citizens. Many whistleblowers go public with their dissent in the name of transparency and openness. Another cornerstone of our cherished freedoms, however, is the right to privacy. You will have to choose.

Your decision also raises deeply personal issues of loyalty and livelihood. From many angles you must answer the question, Loyalty to whom?

Most people have at their core a fundamental loyalty to their family and, by extension, the company that allows them to support it. As the adage goes, you don't bite the hand that feeds you. We also feel loyalty to our colleagues with whom we may spend more time than our families. Whistleblowing can risk their livelihoods as well. At the same time, we share a duty of loyalty toward the public, whether our neighborhood, our country, or the global community. There is a basic duty to help enforce the law that goes hand in glove with the rights of citizenship. Whistleblowers are oft en motivated by a patriotic duty to their country or a civic loyalty to the law and the bedrock principles that guide it.

Any decision about how to act on these conflicting values is not easy, yet it is one that only you can make. At this crossroads, and at many more if you go decide to go forward, the "right" choice means being centered and true to yourself while honoring your responsibilities to those affected by your decision. Whichever choice you make, your life will never be the same. As observed by Professor C. Fred Alford, who has worked closely with whistleblowers after their cases were over, "There is something about blowing the whistle, and suffering the consequences, that takes hold of a whistleblower's life and never lets go." Whistleblowers who speak out instead of remain silent always have a common reason: whether right or wrong, for better or worse, they could not live with themselves if they did not get involved.

Doing the Right Thing "I am honored that people think I am a hero ... but I do not accept that moniker as others are much more deserving of it. I did what was right ... have no regrets and would do it again. As you see, we were just ordinary people placed in some extraordinary situations and did the right thing as all should do." —Dr. Jeffrey Wigand, former high-ranking tobacco industry executive who disclosed the truth about the industry's disregard for public health and safety "I regret being so naive ... I think the American public needs to realize that very few federal protection policies are actually really followed. It seems if you see no evil, hear no evil, no harm has really been done. But, if you are really ethical, it is hard to have an easy life.... The sad fact is that there are so many environmental crimes that will affect our families ... everyone will suffer in the long run ... in health, and also the expensive health bills will have to be paid; the environment will be damaged. People will not hold anyone responsible, partly because companies don't have the money to clean up this big mess that could have been prevented." —Inez Austin, senior engineer who spoke out against hazardous practices at the Hanford nuclear cleanup site "If you think what you are doing is right, you should do it, though you have to understand the likely consequences. If you are prepared to accept those consequences, then go for it. I don't regret raising this at all, and I certainly would raise it again. I think you also can't raise these things in a halfhearted way. If you are going to blow the whistle, then you should do it as loudly and publicly as possible." —Dr. Aubrey Blumsohn, scientist who blew the whistle on Procter & Gamble's interference with a research study of its osteoporosis drug

A recent study by Dr. Aaron Kesselheim and colleagues showed that "compulsion to do the right thing and not money is the primary motivation when drug company employees report fraudulent activity to the government." Interviewing 26 whistleblowers associated with 17 separate cases of pharmaceutical whistleblowing since 2001, the study concluded that the potential of a multimillion-dollar settlement played a minor role in their decision-making and, in retrospect, was not oft en worth the personal costs whistleblowers suffered. Instead, "they seemed to want to right a wrong, or bring to light something that was ethically compromised," said Dr. Kesselheim.

One thing is for certain. With truth on their side, individuals can make a difference. Whistleblowers are the Achilles' heel of organizational misconduct, provided they bear witness when it counts. Used astutely, truth is still the most powerful political weapon in our society, capable of defeating money and entrenched political machines. Armed with the truth, whistleblowing Davids repeatedly have exposed and defeated Goliaths who put their goals of economic or political power above the public interest.

Whistleblowers at Their Best

At their best, whistleblowers embody the professional integrity of true public citizens. Through their actions they add conscience and integrity to our concept of citizenship. Within large organizations they are the human factor that counterbalances the tendency of bureaucracies to put organizational self-interest above all else, even when it means institutionalizing patterns of wrongdoing.

Consider the following handful of examples drawn from GAP's experience representing whistleblowers. Our clients have:

* sparked the removal of the painkiller Vioxx found to cause some 50,000 fatal heart attacks, as well as obtained stronger consumer safety enforcement for other prescription drugs, including Crestor (for lowering cholesterol), Meridia (for weight loss), Bextra (for pain relief), Accutane (for acne), Serevent (for asthma), Ketek (for sinusitis, bronchitis, and pneumonia), Actonel (an osteoporosis drug), ProHeart 6 (a dog medication), and Prevnar (an infant vaccine);

* exposed and stopped both a former oil industry lobbyist appointed to head the White House Council on Environmental Quality censoring government reports on climate change, and agency gag orders restricting the communication of critical climate change research findings with the public;

* helped convince the House of Representatives initially to vote against legal immunity for major telecommunications companies after disclosing that a major telecom's "Quantico Circuit" provided an unknown third party with unfettered access to every mobile communication over its network, including phone conversations, e-mails, and Internet use;

* forced the cancellation of an already-approved and nearly complete nuclear power plant because its construction was compromised by falsification of X-rays on safety welds, uninspected safety systems, and shoddy materials such as automobile junkyard metal substituted for nuclear grade steel;

* exposed systematic illegality and forced a new cleanup after the Three Mile Island nuclear incident by revealing utility company plans to remove a reactor vessel head using a crane whose brakes and electrical system were destroyed in the accident (the vessel head consisted of 170 tons of radioactive rubble that, if dropped, could have triggered another accident; whistleblowers went public with the evidence two days before the head lift was to take place and delayed its operation for 18 months until the crane was repaired and tested);

* released data about possible public exposure to radiation around the Hanford, Washington, nuclear waste reservation, where Department of Energy (DOE) contractors failed to account for 440 billion gallons of radioactive waste;

* shut down the manufacturing division of a multinational corporation that had cornered the market on devices that test the accuracy of precision calibration tools after exposing that test results were random (averting tragedies arising from defective goods such as heart valves, computer equipment, automobiles, and airplanes—any product where precise conformance to design specifications means the difference between success and failure);

* provided evidence that led to the closure of two incinerators and the cancellation of three others after it was shown that the operating ones had dumped toxic substances such as dioxin, arsenic, chromium, mercury, and other heavy metals into the environment of five states and in some instances next to churches and schoolyards;

* sparked public backlashes that three times forced the government to abandon its plans to replace its meat inspections with a corporate "honor system";

* reduced from four days to two hours the amount of time racially profiled minority women going through US customs could be stopped on suspicion of drug smuggling, strip-searched, and held incommunicado for hospital laboratory tests without access to a lawyer or even permission to contact family and in the absence of any evidence that they had engaged in wrongdoing;

* exposed Transportation Security Administration orders to cancel Federal Air Marshal coverage for the highest-risk, cross-country airplane flights during the middle of a subsequently confirmed post-9/11, larger-scale terrorist hijacking alert, orders that were rescinded after congressional protests following the disclosure;

* sparked a top-down removal of upper management at the US Department of Justice (DOJ) after revealing systematic corruption in the DOJ's program to train police forces of other nations to investigate and prosecute government corruption;

* exposed failure by US Marine Corps procurement officials to deliver mine-resistant vehicles and nonlethal crowd dispersers that caused Iraqi civilian and one-third of American combat deaths and injuries, before the whistleblowing disclosure led to delivery of the lifesaving equipment.

Reality Check for the Aspiring Whistleblower

Nothing is more powerful than the truth. But few paths are more treacherous than the one that challenges an abuse of power. Time and time again, GAP has seen whistleblowers pay an enormous professional and personal price for their actions. Because we want you to be prepared, we will not mince words in describing the risks of your decision.

One person against a corporation is not a fair fight. In terms of raw power, the corporation holds all the cards. It enjoys a presumption of legitimacy and legal authority vis-à-vis its employees. It boasts extraordinary resources and connections with politicians, the media, industry, and the larger community. It defines the workplace and its rules and regulations within the law. It bears primary responsibility for holding itself accountable. We will discuss how to even the odds by turning information into power and using the law; but in conventional terms, the deck will be stacked against you no matter how solid your evidence or astute your strategy.

When company employees go public with tales of malfeasance, the focus oft en turns quickly to whether there was a reprisal or justified corporate response. No matter how irrelevant, this oft en focuses attention on the whistleblower's personality and work record instead of the issues that prompted the whistleblowing. Rather than face the problems brought to light, managers oft en blame the "disgruntled employee," who is portrayed as vengeful, imbalanced, or self-serving.

Shooting the Messenger

You will surely suffer some level of harassment or retribution for blowing the whistle because bureaucracies instinctively tend to eliminate anything perceived as a threat. Academic studies confirm that more than 90 percent of whistleblowers report subsequent retaliation. You may not believe that your employer is your adversary, but the record shows that employers oft en do not want to be told what is wrong with their operations. Frequently, the antidote to bad news is secrecy enforced by repression to cover up misconduct, avoid costly delays and litigation, and protect the short-term bottom line.

Not all of these repercussions are immediately obvious. For every outspoken critic who is immediately terminated, a number of others are simply transferred to a cubicle with no further job responsibilities. Some people face such direct harassment from their chain of command that they finally quit. Others are given lateral transfers to isolated or unpopular field offices. Still others face no immediate consequences but find over the years that they are repeatedly passed over for promotions in favor of less dedicated employees who have not been branded troublemakers.

Above all, being a whistleblower is lonely and stressful. You may not be a welcome member of your professional community anymore. Without acting directly, supervisors who once valued your contributions may transfer you to less interesting projects or slowly remove your responsibilities. Co-workers may shun you out of fear, while others are reduced to whispering their admiration in the bathroom. Professor Alford targets this isolation as more emotionally painful than tangible retaliation. "What bothers whistleblowers the most [is] not that the boss retaliated—this at least was understandable: he or she had interests to protect—but that colleagues they thought were friends, colleagues with whom some whistleblowers had spent more time than their families, refused to recognize the whistleblower."

(Continues...)

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Excerpted from The Corporate Whistleblower's Survival Guide by Tom Devine Tarek F. Maassarani Copyright © 2011 by Government Accountability Project. Excerpted by permission of Berrett-Koehler Publishers, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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