Hypothetical, based upon a real fact pattern: Company is involved in a DOJ or OSHA investigation based upon an employee complaint. Over the past several months the employee believed to be the whistleblower has had significant performance issues including coming to work late, failure to complete assigned work and is generally rude to clients and co-workers.
What should the Company do?
Dealing with an employee who is suspected to be a whistleblower, and simultaneously has real performance deficits, poses unique challenges for the employer. On one hand, the company needs to be able to address serious performance issues, such as chronic absenteeism or unprofessional conduct. On the other hand, the employer wants to avoid any claim that any adverse action it takes in response to the performance problems is retaliation against the employee for having blown the whistle. Below are five key strategies that the employer can use to navigate this delicate situation.
First, ensure there will be no retaliation. Tell any manager who is aware of the employee’s potential whistleblower role that there can be no retaliation against the employee for having made the complaint. Ideally, the company can direct managers to its written anti-retaliation policy that confirms that the company will not tolerate retaliation against employees for raising concerns of misconduct. Explain to managers that retaliation can include not only termination or demotion, but other adverse actions such as less advantageous work assignments or transfers. Also, be sure not to unnecessarily broaden the number of individuals who are aware of the protected activity. This is not information that needs to be shared, as any investigation or corrective action with respect to the issue identified by the employee need not identify the employee who raised the concern.
Second, involve the company’s legal counsel right from the beginning. Given the complexities of the legal landscape in this area, there is no substitute for an attorney’s fact-specific guidance. Legal counsel can also ensure that there is effective coordination, and information-sharing where appropriate, between management or Human Resources personnel knowledgeable about the performance issues, and the compliance team handling the investigation.
Third, designate the right person to manage the performance issues. If the employee’s direct manager is unaware of the employee’s identity as the whistleblower, it may make sense to keep it that way. The employee will have a hard time proving retaliation if they cannot show that the person evaluating their performance, or recommending adverse action, knew about the whistleblowing activity. If the direct manager already knows about the employee’s suspected identity as the whistleblower, or is the subject of the employee’s whistleblower complaint, consider designating a different manager or Human Resources officer to manage the performance issues. Insist that the designated person obtain permission from counsel before taking any adverse action against the employee.
Fourth, document the performance problems with care. The employer must be able to show that a negative performance review, and any potential adverse action taken as a result, was driven strictly by performance issues and not by retaliation. Ideally, management has documented the performance issues all along, so that it does not appear that the employee was suddenly singled out for criticism after having made a complaint. Use objective performance benchmarks and company policies to measure performance, consistent with those used with other employees. Put expectations in writing in a performance improvement plan, and document any failures to meet the plan in real time as they occur. Maintain any complaints about rudeness from clients or coworkers in the file as supporting documentation. Complaints from people who do not have knowledge of the whistleblowing will be especially valuable evidence in a potential retaliation case.
Finally, treat the employee with respect at all times. An employee who feels mistreated is more likely to seek retribution against the company either within the context of the investigation, or by filing a retaliation claim. Communicate clearly with the employee about what the expectations are, and about why decisions are being made, to minimize the chance that the employee misattributes them to retaliation. Also, be sure to keep the employee informed, to the extent possible, regarding the steps the company is taking to address the employee’s concerns. Silence is often interpreted as inaction, or worse, the employee feels ignored--and nobody likes to be ignored.