Employers Should Heed Tim Bray’s Message on Whistleblowers
Tim Bray recently resigned his position as Vice President and Senior Engineer at Amazon Web Services because he believed Amazon retaliated against employees who blew the whistle on unsafe working conditions during the pandemic. In a blog post, Bray said that firing whistleblowers is “evidence of a vein of toxicity running through the company culture.” U.S. corporations should heed Bray’s wake-up call and join his pledge to “neither to serve nor drink that poison” of whistleblower retaliation. Until they do, employees who discover misconduct should speak up but should also take measures to protect themselves against retaliation.
Whistleblowers are important to organizations’ optimal functioning. Research confirms the common-sense conclusion that employees are best positioned to identify fraud within a company. An analysis of more than 10 years of data revealed that robust whistleblower programs were linked to increased profitably and reduced legal exposure.
Despite their value, whistleblowers still routinely face severe consequences for coming forward. We represent whistleblowers nationwide, including employees at technology companies who have disclosed unlawful or unethical conduct, such as accounting fraud, securities fraud, and cybersecurity and privacy non-compliance. Retaliation in various forms is common.
All too often, whistleblowers find themselves scorned, alienated, and isolated. For example, as documented in John Carreyrou’s Bad Blood, biotech startup Theranos launched a brutal campaign of retaliation against the whistleblowers who questioned the company’s fraudulent practices. Theranos not only spied on and fired whistleblowers, but it also aggressively prosecuted frivolous lawsuits against the whistleblowers designed to silence and punish them. One of the whistleblowers incurred more than $400,000 in legal fees. But no amount of intimidation and bullying could stop them from exposing and halting one of the largest frauds in U.S. history.
Bray made substantial personal sacrifices to stand up for whistleblowers. By all accounts, Bray was successful in leading AWS and had a bright and lucrative future ahead of him there. But he could not look the other way and instead chose to publicly, even brazenly, align himself with whistleblowers against a corporate culture that apparently equates loyalty to complicity.
Taking on a company with vast resources can be daunting for anyone. Bray did it because of the whistleblowers who had already voiced their concerns about unsafe conditions and sacrificed their jobs for the greater good.
Bray’s bold opposition to widespread whistleblower retaliation should be a clarion call to corporations. Rather than retaliating against whistleblowers, corporations should encourage employees to speak up when they discover unlawful conduct or threats to public or worker health or safety. Fostering a culture in which employees can speak up ultimately benefits companies by enabling them to detect problems early on and take prompt remedial action.
Unfortunately, the fact that Bray felt compelled to resign in a public manner underscores how much work remains to be done to fix the prevalent culture of retaliation. Whistleblowers are an asset that employers should value and use to better their practices. However, until perceptions of whistleblowers align with reality, employees who speak up will face pitfalls. Crafting a strategy in advance of blowing the whistle can maximize the likelihood of effecting corrective action while minimizing the risk of long-term harm to your career.
Based on our experience representing whistleblowers, here are some tips to consider:
Do your homework. Know what you are reporting, whether it is fraud, unsafe working conditions, or some other type of misconduct. Understand and be able to identify the facts that caused you to reach your conclusion. Consider which individuals or documents may corroborate your concerns. Ensure you have a good grasp of the facts that caused you to conclude that the company is engaging in fraud or other unlawful conduct.
Act lawfully. Make sure that your disclosures are lawful and legally protected. Avoid violating the company’s rights when investigating or documenting misconduct. Use proper information gathering techniques, such as obtaining participants’ consent before recording a conversation when required to do so.
Consider the method of your disclosure. You may want to make anonymous disclosures to regulators. Bray’s public opposition to Amazon’s practices is laudable and has generated a lot of attention, but whistleblowers also have the option to disclose certain matters anonymously. For example, the SEC’s whistleblower reward program permits whistleblowers to report fraud anonymously with the help of counsel. Conversely, there may be good reasons to report internally, even directly through your management chain.
Document your efforts to report the violation. You may need to document where you stood, how you tried to facilitate corrective action, and who knew of your disclosures. When employers retaliate, they often blame the whistleblower for not doing something more to report the issue or for not speaking up earlier. And companies often try to deny that management was aware of the whistleblower’s disclosures. Being able to document the details of your disclosures may help you navigate these issues.
Whistleblowing is a noble act and generally is not rewarded. But there are many federal and state laws that provide remedies for whistleblowers who suffer retaliation. And some whistleblower laws provide monetary incentives for disclosing original information about fraud. The SEC’s whistleblower program allows anonymous reporting (through counsel) and provides monetary awards to eligible whistleblowers. Indeed, the agency has awarded more than $450 million to whistleblowers whose disclosures have led to the SEC’s recovery of more than $2 billion in monetary sanctions.
During a pandemic and brutal economic recession, employees will likely become less willing to speak up and instead will focus on trying to remain employed. But when fear of retaliation silences employees who witness misconduct or wrongdoing, companies suffer. That is why corporations should heed Bray’s message and create a culture in which employees can speak up without fear of reprisal.