Although Florida’s state whistle-blower law applies only to state government and state contractors, don’t believe you are above the law just because you are a private employer. Federal whistle-blower laws are quite extensive, and courts vigorously enforce the public policy interest when protecting employees who expose wrongdoing.
Rather than ignore a complaint—and risk expensive litigation—you need to establish policies to investigate whistle-blower complaints. Properly developed and written, they should be similar to those you already have in place to deal with sexual harassment complaints.
The needle and the damage done
The case of Juan Colon is a prime example of how private employers can become embroiled in unnecessary whistle-blowing litigation.
Colon worked for Total Renal Care in Winter Haven. He observed a patient care technician holding a syringe in her hand after she had set a bottle of heparin on top of a dialysis machine. Technicians are not permitted to administer heparin. Colon did not see the technician inject the dialysis patient with heparin, but he reported the incident to his supervisor.
When Total Renal Care did not act on the complaint, Colon complained to the Florida Agency for Health Care and the Florida Department of Health. Then the company fired Colon.
Colon sued, claiming the facility violated Florida’s Whistleblower Law by retaliating against him. Technically, Total Renal Care got off the hook because Colon could not state for certain that he observed a violation. Therefore the court ruled the law did not protect him.
But in many ways, Total Renal Care’s victory was a pyrrhic one. Had the company investigated the complaint internally, it probably could have avoided costly litigation—and the now-public suspicion that the clinic provides substandard care or even commits malpractice.
Most employers have procedures in place to investigate harassment complaints, but whistle-blower issues have some important differences.
Whistle-blower complaints sometimes uncover criminal activity. They can expose employers to third-party civil litigation. They can reveal that a company’s supervisors, policies or practices sanction illegal activity.
When complaints concern a matter that carries potential legal liability, consult a qualified attorney for an opinion. Seeking counsel’s approval provides employers with important legal cover. Even if the practice is eventually determined to be illegal, you can mitigate damages by showing you acted in good faith.
Employers must conduct internal investigations in good faith, too. Take the complaint or suspicion at face value and make sure your internal investigator follows the evidence to arrive at the truth. Any move to punish or fire the person filing the complaint should be thoroughly documented—and approved by an attorney.
After an employee has filed an internal complaint, always conduct a review to see whether you should change any company policies or procedures. This after-action review, best conducted by a team, is key to preventing future problems.
After-action reviews should focus on prevention. The key questions to ask:
- Was the complaint justified?
- If not, did the complainant not adequately understand the situation? Does this suggest some needed training?
- Does the complainant feel the complaint was fairly investigated?
- If not, what does he or she feel was wrong with the investigation? (This may lead to a review of the investigation process.)
- If the action cited in the complaint actually occurred, was it illegal? Did it violate company policies? Has it traditionally been one of the company’s procedures? Did the person take the action with the knowledge and approval of superiors?
Once you have answered these questions, the review team can recommend ways to bring company policies into line with the law or industry-accepted practices. The team also can determine what training to develop to prevent future problems.
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