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Practical Advice on Dealing with Whistleblowers

employee with tape covering his mouth while employer points a finger

It’s the year of the whistleblower. Every day more executives, corporations, and even some small businesses are being taken down by accusations of widespread misconduct. When we first discussed this topic in 2014, the focus was on fraud and discrimination but, as we all know, sexual misconduct has now become a central theme. Regardless of the type of misconduct a whistleblower exposes, there are reasons to listen and learn early on when a problem first comes to your attention.

Understand fairness versus loyalty.

A recent study supports why so many employers see whistleblowers as reprehensible troublemakers: Whistleblowing represents a tradeoff between fairness and loyalty. It’s usually only when an employee’s threatened sense of fairness outweighs loyalty to their employer that they become a whistleblower. In many cases, this shift doesn’t happen when the actual misconduct occurs. It often happens later, when no action is taken or when retaliation is perceived. In fact, the Equal Employment Opportunity Commission (EEOC) reveals that most employee discrimination charges are filed because of workplace retaliation, not because of the discrimination itself.

Instead of being hurt by a whistleblower’s lack of loyalty to the team, it might be better to ask yourself, “What caused them to feel unfairly treated?” The answers likely hide within both your company culture and HR processes. Getting to the bottom of the problem can be a beautiful thing, which means it’s time to change your attitude about whistleblowers once and for all.

Be proactive.

Recently the EEOC published best practices for preventing and responding to sexual harassment allegations in the workplace. The recommendations include putting together strong policies accompanied by accessible (an understandable) complaint procedures, committed leadership, consistent accountability, and regular, interactive training.

The bottom line when it comes to reports of sexual harassment and other misconduct is to have a proactive, clear and consistent plan. Attorneys Brad Cave and Ken Broda-Bahm go so far as to recommend creating a “culture of criticism” within your organization.

“Organizations looking to reduce the threat of retaliation lawsuits should consider creating a culture that welcomes criticism,” they write. “The thought is that if you encourage employees to blow the whistle internally and dissent is viewed as a good thing that’s valued by your company (i.e., it makes the company better), loyalty is enhanced, and whistleblowing to an outside entity such as the EEOC or OSHA becomes less likely.”

Respond appropriately.

Responding to claims of misconduct can be tricky, but it’s a crucial step to get right. Take a look at this example from HR Hero in which an employee accuses his manager of unlawful conduct but then admits it was a lie. However, the case isn’t open and shut. Why? The manager had quickly apologized when the issue first came up, which raises questions about whether there was still misconduct involved. Would you apologize for something you didn’t do? What if the employee was coerced into taking back his story?

Recent rulings from the EEOC and U.S. Supreme Court can make it even harder to decide the appropriate way to respond because they expand the definition of retaliation immensely. Even changing the work schedule of a parent so that it conflicts with school scheduling or excluding an employee from professional advancement activities like lunch-and-learns have been ruled retaliation.

The key, again, is to have a proactive, clear and consistent plan in place. Not only will it help stop complaints from becoming serious legal allegations, but it can improve overall company culture. This advice from Amy Beckstead, partner at Beckstead Terry PLLC in Austin, and the Society for Human Resource Management (SHRM) can help you get started.

Be particularly open to new employee feedback.

The persona of a typical whistleblower includes someone who has a long tenure at the company and holds a high-power position. That’s one reason Caroline Valentine of ValentineHR advises paying particular attention to new employee complaints. Imagine how difficult it can be to enter a new job and immediately raise red flags. Sometimes, though, it takes new eyes to identify misconduct that may have become a cultural norm for the rest of the staff. “You need to value the fresh perspective that individual brings to the situation,” says Valentine. “Even though they’re new, they have a lot to lose, too.”

Encouraging employee feedback within a defined framework can be a great way to improve company culture while identifying complaints before they turn into allegations. If you’re actively improving how you handle employee complaints we’d love to hear from you. What are you tackling and why?

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