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Best practices for responding to internal whistleblowers

Michael A. Morse (mam@pietragallo.com) is a Partner in the Philadelphia, PA office of Pietragallo Gordon Alfano Bosick & Raspanti LLP.

While most compliance programs tout policies and procedures encouraging employees and contractors to internally report their concerns, the reality is that many businesses are unprepared to respond appropriately when they receive a complaint from a whistleblower. This lack of preparation often stems from a critical failure to understand the whistleblower’s concerns and to train frontline managers and compliance professionals on how to speak with internal whistleblowers. As a result, internal whistleblowers are frequently forced to discuss their compliance concerns with managers or compliance professionals who are unsympathetic, offer excuses for the organization, or are judgmental of the whistleblower and their concerns. Not only does this deprive the organization of a critical opportunity to detect and stop compliance violations, but it also raises the risk that the internal whistleblower will file a qui tam complaint or take other action outside of the organization.

Such concerns are not merely anecdotal. According to a 2018 survey by the Ethics & Compliance Initiative, 69% of employees surveyed reported workplace misconduct they had observed.[1] While these results are encouraging, the same survey indicated that 44% of employees who reported misconduct suffered retaliation, with 72% experiencing such retaliation within three weeks of their initial report. These numbers reveal the glaring failure by many organizations to take full advantage of critical information that internal whistleblowers provide about potential misconduct.

Organizations that are truly committed to an effective compliance program are best served by adopting and training on best practices for responding to internal whistleblowers. Such best practices include (a) avoiding misconceptions about internal whistleblowers that can taint objectivity, (b) appreciating the concerns of internal whistleblowers, and (c) using communication skills that encourage internal whistleblowers to be forthcoming about their compliance concerns. Adopting these best practices, and training frontline managers on them, can transform a whistleblower program from one that just looks good on paper to one that actually enhances overall compliance.

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