Two employment lawyers drafted this thank you note for a fictitious company — but the scenario it describes is all too common. One of the authors, Anita Mazumdar Chambers, recently won a $2.4 million jury verdict in a retaliation case against a company that mishandled the incident management process. As this note reveals, some companies make a law firm’s job easy….
Dear Acme Corp. Compliance Dept.:
As the lawyers who just filed a retaliation complaint against Acme Corp., we want to thank you for sending us another client. We think the case is a winner, and we’re grateful that you make our job so easy.
As you know, our client called your hotline to raise concerns about regulatory violations by her boss. Many companies handle such matters quickly and effectively, never requiring the employee to hire a lawyer. But as your slogan says, Acme does it differently!
We appreciate everything you did to help us here:
Your investigators offered no updates and shared only a vague outcome at the end.
How better to suggest that your closed-door process is a sham?
After a rote acknowledgment of our client’s report, your department brushed off her requests for an update. You refused to say whether you would interview the people she suggested, or review the emails she forwarded, or look at the regulatory guidance she identified.
Then, at the end, you told her only that your investigation found her report to be “unsubstantiated.”
Zero details. No explanation of why her fears turned out to be unfounded. No changes to procedure, no education for managers — or at least, none that you would share.
If not for the retaliation that followed, we wouldn’t even know that anyone at Acme read her report!
Oh, and you never thanked our client for making the report, never offered her any guidance on what to expect, never gave her the name of a contact person. Worst of all, you never described how to escalate her concerns.
No wonder she looked outside the company for help.
You revealed our client’s identity to her boss.
OK, maybe you never shared her actual name. But hey, you made it clear.
You asked her boss questions in such a way that the whistleblower’s identity was obvious. You quoted emails that were sent by her. You cited conversations where she and her boss were the only participants.
Our client saw an immediate difference in her boss’s attitude toward her. She was quickly given punitive tasks and shut out of meetings.
Our only note: If you want to be even more certain that whistleblowers will hire a lawyer, try revealing their identity to more people. Why stop at their managers?
You didn’t watch out for retaliatory behavior or follow up on reports of it.
Many compliance departments care about the retaliation that whistleblowers can face — and have solid procedures to monitor and stop such wrongdoing.
Acme does it differently!
Retaliation claims can be easy to prove in court, as any employee-side lawyer will tell you. So, you really strengthened our client’s case not only by failing to shield her from reprisals, but also by ignoring her reports once the payback started.
A jury will be especially upset by your department’s complete disregard of her email that flagged a big drop in her performance rating just one week after she made her hotline complaint — a punishment by her boss that paved the way for further retaliatory personnel actions.
Speaking of which …
You lost all credibility by pursuing discipline against our client.
Acme uses the same team to investigate compliance matters and disciplinary complaints. As a result, the person who was supposed to investigate regulatory violations by our client’s boss also was asked to adjudge that same boss’s retaliatory claim that our client should be punished for breaking a company rule.
Not only did you fail to stop retribution against a whistleblower, in other words: You participated in it.
Compliance investigations are supposed to be conducted purely on their own terms, with the chips falling where they may. By handling a parallel HR matter that involved the same players — but with very different stakes — you destroyed the appearance of neutrality in either investigation.
How could our client believe that Acme was acting on her report if its investigator also had the option to get her fired? Which action would be easier for Acme to take? Which action did it take, for that matter?
Of course she sought our counsel.
In short, you sent this client our way and gave us all the ammunition we need to win her case. Thanks! We’d prefer that Acme handled compliance properly, of course, but so long as you’re retaliating against people, we’re glad you make it so easy for them to get justice.
Our usual fruit basket is on the way.
Anita Mazumdar Chambers
CC: Acme Corp. CEO