Whistleblowers have been awarded more than $85 million in the past week. In-house counsel should ensure their companies' reporting process is clear and trusted by employees.
$86 million. That’s how much whistleblowers received in awards this past week alone.
For in-house counsel, a whistleblower suit is a sign that something’s gone wrong, repeatedly, from compliance concerns to a lack of trusted reporting structures. Zach Brez, a partner in Kirkland & Ellis’ government, regulatory and internal investigations practice and a former staff attorney in the division of enforcement for the Securities and Exchange Commission, said it’s unlikely the series of whistleblower awards from Duke University to the Houston Housing Authority signal a tied-together trend.
But the massive awards are a reminder for general counsel to check their own whistleblower procedures, before compliance or employment issues escalate.
“If you haven’t thought about it before that moment, it’s almost already too late,” Brez said. “You’ve got to back up from there.”
Brez and Thomas Linthorst, a Morgan Lewis partner who co-leads the firm’s whistleblowing and retaliation task force, said companies should start out by creating a culture that tells employees it’s OK to bring concerns forward. General counsel, chief executive officers and chief compliance officers should regularly highlight reporting lines and emphasize compliance.
For Linthorst, that culture starts with training. Managers may be informally notified of compliance concerns by employees. Team leaders need to know when an issue mentioned during a performance review or even in passing needs to be escalated further, and the processes to raise the concern higher, Linthorst said.
That means processes need to be in place. Both lawyers said companies should offer anonymous tip lines for employees who want to report concerns but fear retaliation. Employees should be made aware of tip lines—a poorly publicized one isn’t helpful.
“If you have a company where a chunk of employees are not logged into the internet because they work on a shop floor, then you should post that information on a shop floor,” Brez said. “If you have a company where most people are in sales and they are logged in … make it clear there.”
It’s also crucial that employees trust their reports will be heard. Linthorst said some companies simply say, “Thanks for reporting,” and leave it at that. But he suggests in-house counsel provide employees who report without anonymity “some sense of what happened with the investigation and what’s being done about it.”
If a whistleblower comes forward without anonymity, the lawyers said in-house counsel should ensure they know their rights. Brez said companies cannot stop employees from going to the government with compliance concerns, and it helps if that’s made clear from the start.
“The reaction to the person reporting is always critical,” Linthorst said.
In-house counsel should not tell reporting employees that a whistleblowing conversation must be kept confidential, Brez said, because it could be interpreted as a muzzle on employees speaking out. He said lawyers could clarify that “the conversation is privileged and you’re the company lawyer not theirs, that you’re not limiting any rights to them in this process.”