Managing Whistleblowers: An Employer s Perspective

Transcription

1 Managing Whistleblowers: An Employer s Perspective Jeffrey S. Heller Associate General Counsel BP America Inc. Houston, TX Jeffrey.Heller@bp.com ABA Annual Meeting, August 2014 TWO SCENARIOS FOR AN INVESTIGATION: WHICH WOULD YOU RATHER DEFEND? A. First Scenario: After the employee s concerns of retaliation are reported to management, the supervisor dithers and does not contact HR, legal, or Ethics & Compliance, but rather tries to launch his own review. - The concerned employee is grilled by the supervisor - Later, the supervisor calls an inexperienced HR representative and together they grill other employees about the matter - The concerned employee is told not to come to any team meetings during the pending review - When the concerned employee seeks to launch a complaint of retaliation with higher level management, the response is to address the problem through proper channels - Someone decides it would be a good idea to access the concerned employee s computer and smartphone without notice - The concerned employee is told he will not be selected for a role he sought as a promotion - No interview records were kept and the matter is deemed closed by the supervisor. 2 1

2 TWO SCENARIOS FOR AN INVESTIGATION: WHICH WOULD YOU RATHER DEFEND? B. Second Scenario: Assume same fact pattern with a report by the concerned employee to management: - The supervisor immediately contacts HR and Ethics & Compliance to seek help - HR immediately gives a reassurance to the employee that the company prohibits retaliation and his concerns will be investigated - The concerns are logged into Ethics & Compliance; a case manager is appointed and the case manager assembles the investigation - The case manager tells the concerned employee about the process; an investigator begins crafting an investigation plan - An investigator not directly connected with anyone in the area of concern meets with the concerned employee accompanied by a note taker; the investigator reiterates a prepared statement providing a fair process and non-retaliation to the concerned employee - The investigator, working under written investigation guidelines and a plan, interviews other witnesses; documents are gathered and notice is given before accessing a computer hard drive - A need to know list of persons who are familiar with some aspects of the investigation; information flow back out of the process is handled by the case manager using this list - A thorough investigation report is written; the concerned individual is briefed on the outcome 3 MUST HAVE S FOR EMPLOYERS TO ADDRESS WHISTLEBLOWERS A. A robust, effective and efficient employee concerns and/or incident reporting process. B. Extensive training both for persons handling employee concerns as well as for managers to familiarize them with the process. C. Trained investigators, whether internal or external, working under mandatory investigation guidelines. D. Inclusion of contractor personnel in your processes. E. A real speak-up culture. F. The role of conduct codes in corporations. G. Management buy-in to the concept that real employee concerns deserve their attention and action, otherwise, all of the above are words in the wind. 4 2

3 I. EMPLOYEE CONCERNS PROCESS 1. We start with the premise that it is desirable to have concerns reported internally rather than to learn about a concern through the media, a call from a regulator, or a letter from counsel. 2. It is well-documented that employees and others conducting your business are more likely to raise concerns if there is an effective and publicized process. A. Published and communicated to all employees and others doing your business. B. The role of third party administrators 3. There are various types of employee concerns processes offering different features. A. Most typical is one where concerns are reported and investigated under procedures established by ethics officers, legal or audit functions. B. Ombudsman-style processes create an employee advocate that can sometimes supplement these procedures. These can be more complex but also potentially more effective at handling significant concerns. 4. When should lawyers be involved in employee concerns processes? A. There is a balance between managing risk and potentially impacting the concerns process. An overly legalized process with extensive lawyer involvement does not work in most matters. B. Lawyers giving advise or guidance to those handling employee concerns may or may not have an attorney-client relationship. Proceed with absolute caution. C. Lawyer involvement in investigations is addressed separately. 5 II. TRAINING FOR HANDLING EMPLOYEE CONCERNS 1. Any effective employee concerns program must be accompanied by training for those handling concerns as well as managers A. This is now a specialist activity and not just an adjunct of legal, human resources or ethics. It will not cut it if you simply hand off concerns to untrained persons without background or training. B. In-source or out-source? There are for-hire options available to assist smaller entities establish effective programs C. Are you training managers about your employee concerns processes and their supporting role? If not, you create additional potential legal risk. 2. From a legal perspective, the key goals of an effective program are: A. Obtain facts allowing the company to address the concern. B. Eliminate or reduce the risk of legal claims. C. Better manage the individual whistleblowers and prevent retaliation against them. 6 3

4 III. INVESTIGATIONS AND INVESTIGATORS 1. Lawyer involvement tends to focus upon the investigation process. Some tips: A. Training for investigators is mandatory. Think about the picture you want to paint in a legal forum someday with a trained, competent and impartial investigator. B. Written, mandatory investigation guidelines are a must. C. Fairness and confidentiality assurances should be automatic and used routinely. D. Are some whistleblower matters better handled outside your processes? If so, is there a good reason your processes are not uniform as can be? 2. Legal privilege is the constant bugaboo for lawyer-investigators and lawyer advisors to investigations. Some points to consider: A. Commence the investigation as privileged if needed and wave privilege later if needed. B. Limited waivers of privilege may not be accepted. C. Courts are hesitant to recognize in-house counsel activities as privileged in some instances. D. Meta data discovery will always be present when attorneys are advising an investigation so be careful. E. Be wary of the legal ghost-writer. See, e.g., Thompson v. C&H Sugar, 2014 WL 595II (N.D. Cal. Feb 14, 2014) (Investigation report ghost-written by lawyer not subject to attorneyclient privilege; work product doctrine applied to attorney materials used in investigation, but plaintiffs demonstrated need for materials and production was ordered). 7 IV. CONTRACTORS, CO-EMPLOYMENT AND THE REAL WORLD 1. Contractors and other ostensibly non-employee individuals create unique problems. A. The case for including contractor personnel in your employer concerns processes: Failing to include contractors likely affects your ability to find and manage concerns before they become legal problems. B. Approaching contractors about raising concerns under your processes can however create additional risks including coemployment and becoming the dumping ground for every wacky issue going on with a contractor. C. There are no hard and fast rules look at how the company operates and decide what makes sense for risk mitigation. 8 4

5 V. SPEAK-UP CULTURE 1. An effective employee concerns program is built from a speak-up culture. A. What is obvious and what is not about speaking-up? B. Non-retaliation supports speak-up. C. Employee engagement supports speak-up. D. Telling stories (i.e., publicizing incidents) supports speak-up. E. Remember the goals here: better management of concerns, responding and addressing real problems, and minimizing risks of retaliation and retaliated claims. 9 VI. CODE OF CONDUCT A. Your Code of Conduct is an integral part of your employee concerns process. B. Your Code should include key provisions that address the rights and responsibilities of employees and prevents retaliation. 10 5

6 VII. MANAGEMENT BUY-IN A. How do you create management buy-in to your employee concerns process? B. What can you as a lawyer do to promote and support management buy-in? 11 6