“Could I get in trouble for ‘going public’ about a threat to public welfare that my company covered up?”

Question: There was an incident I was involved in that involved a threat to public welfare. My company covered up what happened.

Since then, we were all threatened with loss of our jobs if the information about what happened got out.

I am now under a Performance Improvement Plan and I anticipate that I will be fired.

Am I culpable in any way if I “go public” with this information?

         Name Withheld
         Bradenton, Florida

Answer: This is a very important question, and one that requires a rather complicated answer. Part of the reason the answer is so complicated is that you have not provided me with all necessary facts. Another reason the answer is complicated is that “whistleblowing” and its possible consequences is a very complicated subject. There are many facts and factors to weigh.  Nonetheless, I will do my best to answer your question; I hope you will have patience in reviewing my answer:

1. No Guarantees regarding Human Behavior: There is no way any of us can be confident when we are trying to predict how human beings will act, or react, to something we do. For this reason, it is always possible to “get in trouble” when you take a step, any step, of any kind, whether it’s a “right step,” a “wrong step,” or neither. At the same time, you may get in “worse trouble” if you don’t take any steps at all. From decades of counseling “whistleblowers” I view the unpredictability of “going public” to be very high. Some people applaud “whistleblowers,” while some people view them in a negative light.

2. How Were You “Involved?”: You have written “I was involved” in the incident, but you haven’t provided any details. If the incident entailed a “threat to public welfare,” then if you were either the primary planner, a primary participant, or if you enjoyed the “fruits” of the incident, you surely could be held culpable for your involvement in the incident, whether or not you “go public” with it.

3. What Do You Mean by “Going Public?”: A lot also depends on what you mean by “going public.” On the one hand, if by “going public” you mean writing what happened on a website on the internet, or telling a newspaper reporter what happened, you could be defaming people if you make any factual errors in what you say. If you make a mistake about what you “went public” with, that could end up with you being sued for damage to someone’s reputation, called defamation.  On the other hand, if by “going public” you mean writing a respectful, dignified letter to the members of the company’s Board of Directors, and/or a government agency, the law in most states provides you with a significant degree of protection from potential lawsuits claiming damage to reputation.

4. A Note About Prosecutors: Sometimes it may be best to request a confidential meeting with your local prosecutor. However if you do so you really should consult first with experienced legal counsel. My friends who practice criminal defense law tell me that it is often the case that people who approach prosecutors about incidents in which they, themselves, were “involved,” often are the first people indicted. This may sound surprising, but I am told that from a prosecutor’s perspective, that is the best way to make sure you continue to cooperate with them in their investigation and prosecution of others.

5. Beware of Confidentiality Obligations: Depending on how you intend to “go public” you might be violating – or be accused of violating – the company’s policies regarding “confidentiality” of company information. For this, alone, you could surely lose your job.

6. Specific Laws Might Protect You: Depending on the “public welfare” you say was endangered, and your manner of “going public,” there may be state or federal laws to protect your “going public.” For example, if a factory was letting dangerous chemicals discharge into a public water system, your “going public” could be protected under certain state laws protecting public health.

7. Your Performance Improvement Plan: You mentioned that you are now on a Performance Improvement  Plan, but you did not express a belief that your involvement in the “incident” was related to, or caused, your being placed on that Performance Improvement Plan. As readers of our blog know, Performance Improvement Plans are often dishonestly used to “target” certain employees. If you believe you were placed on your Performance Improvement Plan to stop you from “going public,” you may have a strong legal and negotiating case against your employer.

8. Possible Effect on Re-employment: One thing to consider would be whether your “going public” might affect your chances for re-employment. While I believe such fears are overblown, I cannot deny that some potential future employers could hold your “going public” against you. This, I believe, is the number one reason most people do not stand up and speak out, even when you know it is the right, best and only moral thing to do.   

9. My Suggestion: For these reasons, and others, I suggest you locate and consult with a local attorney who is experienced in the representation of employee “whistleblowers.” While I often counsel employees to try to address problems themselves, what you describe seems so potentially risky – for a number of different reasons – I recommend you consider the use of an attorney experienced in these areas to guide you in going forward. By consulting with an attorney experienced in these matters – who will ask you all the questions I wish I could – you do not have to hire him or her, but you will better “arm” yourself with the wisest choice before going forward, or not doing so. 

If you like to obtain a list of five or more experienced employee-side employment attorneys close to your locale, just [click here.]

 Standing up for yourself, speaking the truth and doing the right thing is, sadly, often a rather complicated and risky step to take. On the other hand, it can be the best thing to do – for yourself, for your employer, and even for your community. There’s a great deal of satisfaction to be gained by staring “wrong” in the face and not flinching. Personally, I find these cases to be the ones I most enjoy and look back upon with positive feeling.  

 I hope this has been helpful to you, and I wish you the best in going forward on whatever path you choose.

Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.