We spend half of our waking hours at work and while no experience, whether work, home life, or life in general, is perfect, we learn to live with the difficulties that confront us.
Yet, sometimes problems on the job present more than mere inconveniences that can be overlooked or tucked away. Whether we are corporate officers, professionals, sale representatives, or assembly line workers, situations sometimes occur where we must confront the dilemma of addressing unethical or perhaps even illegal workplace activity. Can I overlook the wrongdoing? Will I be held responsible if I do overlook it? What, if any, are my obligations? These are thoughts that may run through one’s mind.
Sometimes the conduct is too hard to overlook. What if it causes economic or physical injury to others or involves cheating customers, shareholders, or the government? Suppose a pharmaceutical sales representative is being urged to promote a drug for purposes that have not been approved by the Food and Drug Administration? Or suppose an employee knows that a customer, for example the government, is being overbilled, or that the services that the government or customer paid for were not fully provided? Suppose that the employer is not abiding by environmental or affirmative action requirements?
At first glance we may dismiss suspicious activity because we want to believe that our employer is ethical and would not break the law. As the wrongful conduct persists, we may re-visit our concerns and conduct internet research or talk to co-workers, family and friends.
Unable to reconcile the employer’s behavior, we ultimately face the dilemma of confronting the issue. If I confront the employer, will I be retaliated against? Should I go directly to the government? Do I need a lawyer? If the company has an internal compliance program, will it really work?
These are some of the questions that many employees ask themselves when faced with this dilemma. You may feel alone and perhaps wonder whether you are the only one ever to go through this decision making process. Yet, the truth is that all whistleblowers grapple with these issues.
Sometimes corporations have internal compliance programs and whistleblowers look to these programs as a place to address corporate wrongdoing. Unfortunately, where the wrongdoing is pervasive, most corporate compliance programs will not solve the problem. Some of the largest companies that have violated federal and state laws have had internal compliance programs that did not work.
At some point, the whistleblower will seek legal advice. How does he or she select an attorney?
Selection of an attorney involves a number of considerations and whistleblowers may want to interview more than one attorney to get different perspectives. While there are undoubtedly different – and valid – views about selecting an attorney:
- It is important to select someone who has experience in the area. Look at the lawyer’s reputation and the reputation of his or her firm.
- It is important that the employee be comfortable with the lawyer and that the lawyer is someone who will be sensitive to the whistleblower’s issues and concerns.
- If the lawyer is ultimately going to be representing the whistleblower in some sort of litigation, either in a False Claims Act case or some other statutory or common law action, the whistleblower should make sure that the lawyer and his or her firm have the capability to actually engage in litigation. Has the lawyer taken depositions? Has the lawyer resolved cases? Has the lawyer tried cases?
- In addition, under what terms will the lawyer work? Will he or she work on contingency meaning that the lawyer and his or her firm will be paid only if there is a result? Will the lawyer be paid by the hour or on some other basis?
The process of working with a lawyer to determine a course of action, if any, is different in every case. One way to think about the use of a lawyer is that the employee need not go to a lawyer only if he or she has decided that legal action is merited. Rather, a lawyer can be a source of a reality check in terms of working with the employee through the questions of whether his or her concerns are valid and, if so, what is the appropriate choice for the employee. Determining the course of action is not simple. The lawyer may spend time talking to the employee, reviewing documents, rechecking the law, and coming back to the employee with more questions. This is something to expect.
While being a whistleblower is sometimes not easy, there are many people who have gone through the experience and resources do exist to guide the experience to a successful result.