I recently interviewed an employee who had made a complaint about behavior she believed to be fraudulent within her organization. I conducted the interview over Zoom, but when our meeting began her image did not appear on my screen. I gently asked if she could start her video feed – she proceeded to ask me a series of questions in rapid succession:
- “Do you really need to see me?”
- “Isn’t this supposed to be anonymous?”
- “Nobody is going to know that I talked to you, right?”
I conducted this investigation at the behest of her employer – I could not promise her anonymity. I do find it useful to see an interviewee – both to form a rapport and to assess their credibility.[1]
What I could tell this employee is that her employer clearly took her concern seriously. Rather than brush it under the rug or conduct a cursory internal investigation, they chose to expend the time and money necessary to bring in an outside investigator. This appeared to assuage her concerns. She proceeded to share her experiences with her employer’s management group and detail the behavior that she believed to be fraudulent.
Depending upon the context, a whistleblower may not be entitled to anonymity. But that does not mean a whistleblower is wrong in having an expectation that they will be protected after bringing forward a concern. Various federal and state laws serve as safety nets for whistleblowers.
The Whistleblower Protection Act of 1989 protects federal employees, applicants for federal employment, and federal contractors and subcontractors from adverse personnel actions. This law safeguards whistleblowers who have reported the possible existence of an activity that constitutes a violation of law, abuse of authority, and/or a danger to public health. In 2012, the federal government passed the Whistleblower Protection Enhancement Act. This act clarified and expanded the scope of protected disclosures. For example, a disclosure may still be protected even if it was (a) made to someone who participated in the disclosed wrongdoing; (b) if the wrongdoing had previously been disclosed; or (c) even if the disclosure was made while the employee was off-duty.
In addition to these generalized laws, the Federal government also has somewhat of a sectoral approach[2] to whistleblowing laws. Depending upon the type of information disclosed, there are different laws that might shield a whistleblower. The Occupational Safety and Health Administration, also known as “OSHA”, compiled a chart that overviews the protections endowed by various Federal Laws. For example, the Occupational Safety and health Act of 1970 contains protections for employees who make good faith complaints about health and safety hazards in the workplace. The Sarbanes-Oxley Act of 2002 protects employees from relation for reporting alleged mail, wire, bank, securities, and other types of frauds. The Affordable Care Act of 2010 protects employees from retaliation for a variety of reasons, including, but not limited to, an employee’s report of a violation of the Affordable Care Act’s requirements that health insurers cover preventive services and not deny coverage based on a preexisting condition.
The state of Colorado also has several protective laws for whistleblowers. One such law directly protects state employees from punishment. Colorado Revised Statute Section 24-50.5-103 prohibits a state employer from “initiating or administering any disciplinary action against an employee on account of the employee’s disclosure of information.” Another Colorado law protects employees whose employers have contracts with the State of Colorado. Colorado Revised Statute section 24-114-102 protects employees against disciplinary action for having disclosed information about an employer connected to the state as a contractor.[3]
In 2022, Colorado passed the Colorado False Claims Act. Per Colorado Attorney General Phil Weiser, this act aims to provide “increased enforcement mechanisms provide new and more robust avenues to target criminal actors who seek to illegally divert government funds.” The Colorado False Claims Act provides that a protected party is “entitled all relief necessary…if the individual is discharged, demoted, suspended, threatened, harassed…or an in any other manner retaliated or discriminated against….because of lawful acts done by the individual…”
In the role of an outside investigator, it may not be appropriate to provide anything that could be construed as legal advice to a whistleblower interviewee. That said, it may be appropriate to channel a whistleblower’s concerns to counsel for the employer. While remaining faithful to counsel’s obligation to the employer, it may be prudent for counsel to remind the whistleblower to-be that there are various laws that might protect their disclosure. Moreover, many employers have adopted codes of conduct that contain anti-retaliation provisions about whistleblowing. These provisions are adopted by employers to encourage compliance with the law. In doing such, both employer and employee stand to gain.
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[1] I note that facial expressions and body language are not always reliable indicia of credibility. In the context of police interrogations, reliance on these visual indicators has been associated with false confessions.
[2] Federal privacy law is also described as being covered by a “sectoral approach.” Currently, privacy laws are a cluttered mess of different sectoral rules. Instead of a singular law that covers all forms of consumer data privacy, there are many different laws that cover different types of consumer information.
[3] Both Colorado whistleblower statutes make clear that an employee may not disclose information that they know to be false. Similarly, disclosures made with “disregard for the truth or falsity thereof” also do not receive protection. Another exception to protection is where the disclosed information is subject to confidentiality pursuant to another provision of law.