Whistle While You Work

Everything has a time and place, including doing the right thing. The time and place a worker chooses to blow the whistle on employer wrongdoing can make the difference between continued employment and unemployment. This topic was the subject of a lawsuit that made it to the US Supreme Court this past year. In May, the Court ruled against a worker who sued after he was fired for writing a document that included the worker’s opinion that some actions by his employer were not constitutional. At first blush, the ruling seems to be horrible news for workers. But in real life, the Court didn’t say anything that really hurts workers. This guy just chose the wrong time and place to toot his whistle.

Workers who report what they believe to be illegal activity by their bosses are called whistleblowers. In the old days, blowing the whistle on illegal activity could get you fired. Then came laws that offered job protection to workers who came forward with information about illegal activities by their companies.

Whistleblowing is about shining a light on businesses or their executives that are breaking the law. Think toxic waste dumping. Deceptive accounting practices. Hiring illegal workers. These are the kinds of things that cause major societal damage and raise nearly everyone’s eyebrows.

Whistleblowing is not about telling the world that a company has poor business practices, or is unfair to its employees. People – including companies and their managers – do stupid things all the time. Some stupid things are illegal. Most are not. They might make a good cartoon strip, but they won’t get a worker legal protection if that worker gets fired for saying embarrassing things about the boss. Nor is whistleblowing about protecting workers who merely complain in a general way about how things are done – even if that way is illegal.

Which brings us back to the Supreme Court case. The worker in this case believed that some procedures required by the Constitution had not been properly followed. He had told his bosses, who didn’t respond to his satisfaction. He apparently threatened to include his concerns in an official document he was writing on behalf of his employer, and he was told not to do that. He wrote about his belief of the wrongdoing in that memo anyway, and that was what got him fired.

This case was not so much about the fact that he voiced concerns and was fired, as it was about the way in which he voiced those concerns. If he had written a memo specifically to notify an appropriate person of what he believed, the outcome probably would have been in his favor. But because he included his opinion in a company document that was going out in the company name, to people who had no authority to do anything about his concerns, the Court thought that this worker had merely ignored a legitimate work related directive.

The public definitely has an interest in keeping companies honest, and workers have an interest in being able to report wrongdoing. On the other hand, companies have an interest in maintaining some control and authority over the people in their workplace. Whistleblower laws have never been designed to let workers make their own decisions about how they do their jobs. Rather, the laws are designed to protect workers when they report their concerns about wrongdoing – sometimes to higher level supervisors, sometimes to police or regulatory agencies, sometimes even to the press, depending on the particular state. But the law generally does not protect a worker who merely ignores directives about how to perform the job.

The worker here simply chose the wrong time and place to blow his whistle after his bosses ignored the first whistle blast. If you find yourself in this situation, consider who has the authority to fix the problem. Consider the type of problem and determine whether your information should go to higher level management, local law enforcement authorities, IRS officials, or state and federal agencies that regulate the particular violation. If you whistle while you work, make sure you have the right audience.