The Department of Justice (DOJ) wants your employees to blow the whistle on their workplace, and it’s willing to offer a big payout, depending on the outcome.
Under a new pilot program that started August 1, the DOJ is offering compensation to whistleblowers whose tips result in a successful prosecution. The program covers a certain set of corporate crimes, ranging from domestic and foreign corruption to healthcare fraud.
While whistleblowers can submit their complaints directly to the DOJ, the agency has said it wants to “encourage employees to report misconduct internally” before going to the government, and that doing so may actually increase their monetary award. Corporate leaders are being encouraged to go to the DOJ with information about wrongdoing before their workers do, the Washington Post reported. “Company leadership must grapple with the increased possibility that if they don’t self-disclose, an individual whistleblower might beat them to the punch,” Lisa Monaco, US deputy attorney general, told reporters.
This is where internal compliance programs—in some cases, facilitated with the help of HR pros—come in.
What drives workers to report. The share of employees reporting misconduct in their workplaces fell by five percentage points from 2018–2019 to 2020–2021, according to research published by consulting firm Gartner in June 2022. Workers’ reluctance to come forward may be driven in part by pandemic-related work-from-home arrangements. “In a virtual or remote setting, employees are less likely to come forward,” Chris Audet, VP and chief of research with consulting firm Gartner’s assurance practice, told HR Brew. He added he’d heard from HR and compliance leaders who were concerned that employees might “not trust us to the same level.”
Perceived safety, trust, and benefit all influence whether employees feel a personal responsibility to report misconduct at their company, Gartner found. The latter two factors are particularly important, and something that compliance and HR pros can stress more in their communication with potential whistleblowers, Audet said.
Ensuring transparency can help instill trust, though it can be hard for departments handling whistleblower complaints to determine what level of transparency is appropriate, Audet said. For legal reasons, the outcome of a whistleblower’s case may need to be kept confidential, but there are still ways to communicate with employees about how their complaint is being handled, he added. Rather than share the material outcome of the case, “it matters more, seemingly, for employees, just to know that they’re being attended to, they have some level of transparency into the process and what’s happening when the report is being investigated,” he said.
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Benefit is the factor most likely to influence an employee’s willingness to report, yet it’s something HR and compliance leaders don’t emphasize enough in their messaging, Audet said. Employees don’t necessarily want to receive a monetary benefit when they come forward, but rather know that they’ll be seen as a leader for doing so, he added: “It’s not about a payout. It’s really about making them feel this is something that we would acknowledge as leadership-style behavior within the organization.”
Calculating risk. Any whistleblower policy should make clear that employees won’t be retaliated against for coming forward with concerns about their company, said Caroline Valentine, president of Valentine HR, who has consulted with companies on developing, implementing, and maintaining such programs. Various federal statutes protect whistleblowers from retaliation for reporting potential violations of the law, and some states have their own protections in place, as well.
Valentine said she’s seen employers start to pay more careful attention to their whistleblower policies in recent years, as organizations’ appetite for risk has gone down. “They are being told by HR professionals, by employment attorneys…‘Hey, there [are] a lot more lawsuits happening,’” she said. At the same time, employees have a “better understanding of their rights,” Valentine posited.
While employees can always report concerns about their companies directly to government agencies, they may feel more comfortable going to their employer first if they know there’s a whistleblower policy in place, and their manager has communicated effectively with them about it, Valentine said.
“If you create enough of a protective, respectful, no retaliation environment, then they’re going to come to you first, and you have time to fix it,” she said.