Dallas-Fort Worth Whistleblower Attorney Leads Internal Investigations
WHAT IS WHISTLEBLOWER LAW?
Whistleblower law and internal investigations are two distinct but related areas of law. A whistleblower is typically an employee of a company or government body who becomes aware of fraud, misconduct, health violations, safety violations or corruption. Attorney Steve Kardell can help you with your whistleblower law concerns.
Numerous attempts have been made to craft a whistleblower law that both encourages reporting and adequately protects the whistleblower from retaliation. Unfortunately, this law is still a work in progress. While the Sarbanes-Oxley and Dodd-Frank Acts provide legal protections and incentives, respectively, many well-intentioned whistleblowers are still retaliated against through misuse of the corporate internal investigation process.
WHY SHOULD I WORRY ABOUT A CORPORATE INTERNAL INVESTIGATION?
Whistleblowers typically believe that an internal investigation is a welcome event that will finally vindicate the substance and legitimacy of their complaints. Unfortunately, rather than a confirmation of the whistleblower’s complaints, the internal investigation tends to be either focused on discrediting the whistleblower or on identifying a perpetrator. Too often, the whistleblower must face:
- Termination for all: All too routinely, the investigative team leading the investigation comes into the process with a preference for termination. Apparently the investigators view termination as a strategy to protect the larger organization from a bad influence. Additionally, turning the blame on the whistleblower transforms the process from one in which the investigative team must be reactive to one in which it appears to take proactive disciplinary measures.
- Ethical promises sans substance: Prior to the investigation, most companies will emphasize their focus on fairness and the ethical treatment of employees. The whistleblower may also hear such bromides as “search for the truth” and representations that any information that is forthcoming will not be met with retaliation. Unfortunately, these assurances are often illusory. Unless there is specific statutory language, these promises are unenforceable.
- Not entirely impartial: Many whistleblowers expect fair play and an unbiased arbiter, similar to what they would find at a legal proceeding. Unfortunately, internal investigations have developed into an extremely lucrative practice area. Therefore, it is not surprising that there is a subtle, but perceptible, bias toward the corporation and those corporations similarly situated for repeat business.
Quite clearly, an internal investigation is fraught with legal pitfalls and professional challenges for managers and corporate executives.
HOW SHOULD I HANDLE A CORPORATE INTERNAL INVESTIGATION?
While each case is different, some general guidelines are useful to keep in mind during an internal investigation:
- How can I protect my job? If you are called before the general counsel’s office, you should be given an Upjohn warning. Sometimes called corporate Miranda rights, Upjohn warnings should include statements that the lawyers represent the company and not you, and therefore, any privilege is also the company’s. What this means is that the company can waive privilege even if it is not in your best interests. Rather than asking the generic question, “Do I need a lawyer?” instead ask the investigators if they would speak without counsel. Ask if the corporation can pay for your lawyer. Finally, make it clear that you intend to cooperate but simply need more time to consult with an attorney before being interviewed.
- Find out if your company will allow your lawyer to attend. Many people wrongly assume that if an employee is questioned in an investigation that could result in civil or criminal charges, that the employee has a right to a lawyer. This may be true for union members. However, the vast majority of the workforce is not unionized and does not receive this protection. Regardless of whether your company allows your attorney to attend, you must — any refusal to attend the meeting can be grounds for termination.
- Understand that the government is aware of the whistleblower investigation. If you decide to engage with the investigators and speak about the investigation, be honest but do not direct the investigators to new areas of wrongdoing or speculate about others’ potential involvement. Speculation and new areas of inquiry can turn you into a focus of the investigation since you are now the primary lead.
Contact our law firm to plan and anticipate corporate internal investigation issues
Corporate internal investigations are particularly dangerous to the uninitiated, due to the company’s tendency to reassure and calm the whistleblower before turning the investigation on its head. Attorney Steve Kardell can prepare you for this stressful process. To protect your job and pursue damages, contact our office today at 214-306-8045 or online.