Whistle Blowing - Two Key Questions
Should you blow the whistle?
How should you blow the whistle?
What is Whistle Blowing?
Whistle blowing is the release of information by a member (or former member) of an organization that is evidence of illegal or immoral conduct in the organization, or conduct in the organization that is not in the public interest
Some Clarifications
Only a member of the organization is said to "blow the whistle" by releasing information
A newspaper reporter or a witness to as crime is not considered to be a whistle blower
Why?
An employee has an agreement with the organization; the reporter or the witness do not
Some Clarifications
Information must be released
There is a difference between whistle blowing and dissent
It may or may not be wise for an employee to publicly disagree with her employer, but disagreement is not whistle blowing
"Blowing the whistle" is different from "sounding an alarm"
More Clarifications
The information must be evidence of some significant wrong
Everybody knows that there are some bad managers and petty people in organizations
Telling us that is not really "whistle blowing"
From a utilitarian perspective, any action that fails to maximize the goods is wrong, but we save the term "whistle blowing" for serious wrong or potential wrong
More Clarifications
The information must be released outside of the established reporting and communication relationships in the organization
Most companies have procedures for employees to report wrongful conduct
Following these established procedures is not considered whistle blowing
However, we can make a useful distinction between external and internal whistle blowers
The internal whistle blower goes outside of established procedures, but keeps the information inside the organization
Even More Clarifications
The release of information must be voluntary, not something that a person is required to do
This distinction is not always clear, as whistle blowers can end up in situations where they are legally required to testify
But the idea is that the person took the first step on his own
Petermann v. International Brotherhood of Teamsters
Petermann did not want to be a whistle blower; he wanted to avoid a charge of perjury
Final Clarification
A person’s motive in releasing information is important
Doing the Right Thing
Protecting herself
Getting even
So What’s Wrong with Whistle Blowing?
Whistle blowing conflicts with obligations to act in the interest of your employer and not to reveal confidential information
Whistle blowing can upset the relationships of loyalty and trust that organizations rely upon to take effective actions as a group
Principals and Agents
An agent
is a person who is engaged to act in the interests of another (called the principal) and is authorized to act in the principals behalf
a person who is authorized to act for a principal and has agreed so to act, ands who has the power to affect the legal relations of his principal with a third party
The obligation of an agent
to act solely for the benefit of the principal in all matters connected with his agency
Agents we think of typically are lawyers and accountants, but any employee can also be considered an agent
Employees and Agency
An employee - as agent - has an obligation to
work as directed by the principal
protect confidential information of the principal
be loyal to the principal
Why "loyalty"?
Because it is too difficult to try to specify in detail all the various ways that a given agent could harm a principal
So we summarize by saying the employee has an obligation to be loyal
The Loyalty Argument
"The Disloyal Agent"
Disloyalty is wrong
The whistle blower is a disloyal agent
Therefore whistle blowing is wrong
OK, so far at it goes - but does it go far enough?
Two problems with the argument
We need to know how far loyalty goes
We need to know what true loyalty really is
Loyalty - How Far Does It Go?
The law says that the agent is obligated to follow the reasonable directives of the principal
This is interpreted to mean that agents are not obligated to do anything illegal or immoral,
Nor keep confidential any information about a crime
Loyalty - How Far Does It Go?
Further, the law says that a an agent may reveal confidential information to protect a "superior interest" of the agent or a third party
So, from a moral (as well as a legal) perspective, the loyalty obligation of the employee is not absolute
But, there’s more...
What is Loyalty, Really?
Does loyalty mean acting in the interests of the organization, or simply doing what you are directed to do?
Perhaps it is your boss who is actually being disloyal
Many whistle blowers think of themselves as loyal agents who are trying to prevent further harm to the organization
A Whistle Blower’s "Checklist"
Is the situation serious enough to warrant whistle blowing?
Do you have enough facts, and do you properly understand their significance?
Are there any established internal channels available?
What is your responsibility based upon your role in the organization?
What are the chances for success?
What is the best way to blow the whistle?
What is the Best Way to Blow the Whistle?
To whom should the information be revealed?
How much information?
Should it be revealed anonymously?
This can be safer - although your name may come out anyway, as when legal testimony is ultimately necessary
But it also lacks some credibility - anyone can make an anonymous charge
Stick to the key issues
Do not go on a crusade
Do not engage in personal attacks
The organization may try to paint you as a crazy misfit - don’t make it easy to do
Have a plan of action and stick to it
Is There a Right to Blow the Whistle?
There are laws protecting federal employees
Civil Service Reform Act of 1978
Whistleblower Protection Act of 1989
Some private employee protections
National Labor Relations Act of 1935
Title VII of the 1964 Civil Rights Act
Occupational Safety and Health Act of 1970
Other Acts with anti-retaliatory provisions
And...
Is There a Right to Blow the Whistle?
False Federal Claims Act of 1863 (amended 1986)
Whistle blowers can get a percentage of the monetary value of the fraud they uncover by defense industry contractors
State laws, too, but most protection is only for state employees
Reasons Against Protecting Whistle Blowers
A law recognizing a right to whistle blow is open to abuse
Incompetent employees could use it to protect themselves
It could be misused for revenge
Such a law would make managerial decision making much more difficult and companies much less efficient
What should the legal protection be?
Allowing the employee to keep her position might create an untenable situation
Reasons For Protecting Whistle Blowers
Utilitarian
Protecting whistle blowers will encourage persons to reveal harmful conduct, and so increase happiness
Kantian
A person ought to be protected against any punishment for taking a morally required action
Components of a Whistle Blowing Policy
An effectively communicated statement of responsibility
A clearly defined procedure for reporting
Well-trained personnel to receive and investigate reports of wrong doing
A commitment to take appropriate action
A guarantee against retaliation