5 Things Every Whistleblower Should Do

The New Jersey Conscientious Protection Act (CEPA) protects workers who complain about or report unlawful conduct on the part of their employers from retaliatory actions like firing or demotion. However, no law confers unlimited protection, CEPA included. So-called “whistleblower” employees should still make sure to complain and report to their employers in a manner that will hold up in a court of law should they ever need to litigate.

Here are five tips for employees considering “blowing the whistle” on their employers.

1. Make sure you have an objective, reasonable basis for believing that the conduct you are reporting is illegal or a threat to public health, safety and/or welfare.

In order to pursue a claim under New Jersey’s CEPA, a worker must “reasonably believe that his or her employer’s conduct was violating either a law, rule or regulation promulgated pursuant to law, or a clear mandate of public policy.” Dzwonar v. McDevitt, 828 A. 2d 893, 177 N.J. 451 (N.J. 2003).

The key word here is “reasonable.” Fraudulent representations to government authorities, wage theft, or physical abuse all qualify as conduct that is “reasonably” considered unlawful. Examples of workers with a solid and “reasonable” basis for calling out their employers are:

• A manager for a janitorial services company who knows his boss is hiring undocumented workers and paying them “under the table”;
• A nurse who witnesses another nurse or CNA hit a patient, or administer the wrong, life-threatening medication to a patient;
• A payroll employee who sees that her supervisor is altering time sheets in order to commit wage theft.

The legality of other types of employer conduct, however, may be less clear.  For instance, a nurse may believe that her nursing home employer’s cleaning practices put patient health at risk — but are they actually unlawful?

In these instances, it’s advisable for the potential whistleblower to consult an attorney or relevant governing body to determine whether the employer is acting illegally before making a formal complaint. In the foregoing example, for instance, our nurse could call the state nursing board and ask what cleaning practices are mandated by law. Or, she could consult a medical malpractice attorney about when failure to clean violates a common law standard of care.

Optimally, to prove the “reasonableness” of his or her concern, a whistleblower should be able to point to a violation of a written statute or regulation promulgated by a federal or state authority. Recommended protocols or “best practices” issued by professional boards will carry much less weight.

2. Report the conduct to the proper authority or authorities.

You cannot sustain a whistleblower claim by simply grousing to your co-workers about your employer’s conduct. Instead, the language of CEPA makes clear that you need to complain to a “supervisor” or, failing that, to a “public body.”

Ideally, you should first make an internal complaint of illegality to someone with the supervisory authority to pass your complaint to the appropriate higher-up, or to investigate and respond to your complaint his- or herself.  If your complaint falls upon deaf ears, it may then be appropriate to report to an external authority with the power to investigate and remediate.

For instance, an employee who witnesses timesheet fraud could file a complaint with the State Wage and Hour Division.

3. Report the conduct in writing.

Although this point seems simple and intuitive, it is remarkable how many employees fail to document their complaints of employer wrongdoing. Unfortunately, when you don’t complain in writing, your case can easily play out as follows:

• You complain verbally to a supervisor.
• You are retaliated against by being subjected to write-ups and bogus disciplines leading to termination.
• When you begin shopping around for an attorney, many attorneys will be reluctant to represent you since you cannot offer any hard evidence that you were terminated due to your whistle-blowing activity. Your employer will certainly deny this was the case and will have documented — albeit bogus — discipline to back him- or herself up.

As such, it’s essential to formally report your employer’s illegal conduct in a letter or email to an appropriate higher-up. Remember:

• Keep your communication timely and contemporaneous.  Once you determine you have a reasonable belief that your employer’s conduct is illegal, fraudulent, or a threat to public health and welfare, report it to your manager(s).
• Include as many managers in your communication as necessary to put your employer on notice of your complaint and protect yourself from retaliation.  If you are reporting conduct of your direct manager, for example, then by all means include supervisors and others up the chain of command in your communication.  If you have an HR representative, include that individual as well.
• Keep the tone of your written complaint neutral and matter of fact, rather than outraged, threatening or nasty.  
• Briefly but clearly describe the conduct which you believe to be illegal, fraudulent, or a threat to public health and welfare.
• If you know the specific statute or regulation you believe your employer to be violating, cite it in your complaint.  If not, then simply express your belief that your employer’s conduct is “illegal”, “fraudulent”, or “a threat to public health and/or welfare.”

For example, a payroll employee who discovers her direct manager altering time sheets so as to deprive workers of wages might write the following to her department head and HR:

March __, 20__

Dear Mr. ___ and Ms. ____:

On March __, 20__, I did a comparison of our employees’ handwritten time sheets with the computerized records input into our system by my manager, X, over the last month.  I found that Manager X has consistently failed to input any time worked in excess of 8 hours per day. I believe that this conduct is fraudulent and in violation of wage and hour laws.  I am available to speak to you regarding this matter at your convenience.

Sincerely,

Payroll Assistant

4. If practicable, consult an attorney and/or have the attorney report the conduct on your behalf.

If you have any doubts or uncertainties regarding your written whistle-blower complaint, it’s wise to consult an attorney.  Our office routinely reviews and advises clients on complaints to employers that the clients choose to write and submit under their own names.  Alternatively, a complaint of illegality written by an attorney on your behalf has the advantage of letting your employer know that you take your allegations seriously, and that you are fully aware and apprised of your CEPA protections against retaliation.

5. Continue to do your job to the very best of your ability.

Even when they complain about activity that is clearly illegal, even when they complain in writing, and even though they are protected by CEPA, whistle-blowing employees are still often retaliated against.

As such, after making a formal complaint, it is extremely important that you make a good-faith effort to do your job and do it well. CEPA’s provisions are no excuse for tardiness, sloppy or missed work, or squabbles with co-workers and superiors. Your employer will be looking for any excuse to discipline you, if not terminate you — so don’t provide one.

Get Help Filing a Whistleblower Complaint

If you need guidance on how to write a whistle-blower complaint or if you believe you’re being retaliated against due to your whistle-blowing activity, call our offices today for a free consultation.