Thursday, June 11, 2020

Pandemic Response: Whistleblower Retaliation

I am an underwriter in a large lender. We have offices in 30 states, with a main office in the Midwest. I work at the main office.

I want to know about how to go about handling a whistleblower complaint without having my boss fire me.

My concern is that we were required to return to the office, even though the office was not set up for protecting us from COVID-19. Now, two underwriters and a few processors have come down with COVID-19 and are in quarantine.

If we don’t come in, we have been told we will be replaced. I need this income and the health benefits and can’t survive without them.

We met with senior management a couple of weeks ago, but they have done nothing. Basically, we feel they don’t care. So, I want to report them to the authorities without winding up getting myself fired.

My question is, what protection do I have from getting fired if I report this unhealthy environment?

I sympathize with your situation. Unfortunately, your question is not the first of its kind that we have received. It is a significant concern when management does not ensure a healthy work environment. It seems that you have already researched which authorities should be contacted. But, having done so, you believe you may be fired for reporting the problem.

When an illegitimate and illegal firing takes place for reporting the potential of violations of law in a commercial entity, this is called Whistleblower Retaliation. 

In general, whistleblower statutes aim at encouraging employees to speak out and act when they see illegality, so as to eliminate corruption while protecting the employees who “blow the whistle.” There is some case law based on statutes where an employee is not protected who stands by and takes no action. So, it sure does feel like ‘damned if you do, and damned if you don’t!’

I will not comment about the illegality of this matter, but I suggest you contact a labor lawyer licensed to practice law in the state where the main office is located. You may find that some of these lawyers are more interested in representing employers than employees. But there are plenty who will want to get involved. Make sure you bring other employees with you. I think whistleblower retaliation may be mitigated if you retain appropriate legal counsel.

But, let’s view that choice as a last resort. First things first: I suggest finding a way to broaden the discussion with management in a proactive and helpful way. It may be that they want to work collaboratively with employees but there is no structural method in place to benchmark one another.

Download our Business Continuity Plan with Pandemic Response – Checklist and Workbook (“Checklist”). This document is now in its 7th update, and the 8th is going to be published shortly. It is free! It has been downloaded by thousands of people at this point, including regulators, executive, senior, and middle management, and indeed many employees, rank and file. So, you’re in good company, and you can make a case for using it for a working relationship with management.

Read through the Checklist and decide on how to present your view in a coherent way. Take the Checklist to management and request an opportunity to discuss the sections that pertain to your particular needs and concerns. Give a copy of the Checklist to management or give them the link to download the Checklist

Appoint a committee of employees to work with management in fulfilling the expectations. Meet regularly to benchmark one another. You may find that opening communications is the best way to ensure a healthy working environment.

To assist with opening such communications with management, advocate for your view by drawing on a few talking points. Some reliable talking points are set forth in our recent FAQ: Pandemic Challenges: Returning to the Office.

Good luck! Stay Safe!

Jonathan Foxx
Chairman & Managing Director
Lenders Compliance Group