Date: January 10, 2018

The Politics Guys podcast interviewed TELG's Scott Oswald on a number of whisteblower-related topics — including the difference between whistleblowing and leaking. Host Mike Baranowski also talked with Scott what companies must do, legally speaking, to act against discrimination and sexual harassment in the workplace.

"[A] whistleblower is someone who is doing the right thing; following the established mechanism; and disclosing only what is necessary to correct the harm or the illegality."

R. Scott Oswald

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Whistleblowing, Leaking, and Employment Discrimination


Whistleblowing, Leaking, and Employment Discrimination

(Transcribed and edited for readability by The Employment Law Group)

Michael Baranowski (host): Welcome to The Politics Guys. I’m Michael Baranowski, a political scientist at Northern Kentucky University. My guest today is attorney Scott Oswald, managing principal at The Employment Law Group.

[Scott] has extensive experience with whistleblower, employment discrimination, and wrongful termination cases; he regularly lectures on employment and whistleblower law; and he’s authored numerous articles on federal and state whistleblower and employment law protections.

Welcome to the show, Scott.

R. Scott Oswald: Hey, I’m happy to be here, Michael. Thanks for having me.

Baranowski: You know, to start with I was hoping you could maybe clear up some terminology for me. I hear the terms ‘whistleblower’ and ‘leaker’ a lot and I’m wondering if you could explain what exactly they mean.

Oswald: Yeah I completely get it, I mean you hear it a lot out there, [they’re] almost interchangeable in the media. But they really do have distinct definitions, both under the law in particular and really in how [they’re] used in the federal sector.

So let’s look at it, I mean — a whistleblower really is somebody who is disclosing information that ultimately is for the public good. The purpose behind the disclosure generally is to get the information to people, who — maybe it’s an organization, maybe it’s government agencies — actually can do something about it.

The nature of the disclosure itself, the extent of the disclosure is just enough to do that, to meet that purpose so [that] we’re not, for instance, just disclosing information indiscriminately. And really the person is using an established mechanism. So a mechanism that either is provided for by law, or provided for by the [whistleblower’s] organization with the expectation then that the organization itself will do the right thing and, in fact, investigate.

And what the law then requires organizations to do is actually to do something with that information. Assuming a whistleblower does her part and actually discloses using that established mechanism, then there are rules out there for publicly traded corporations and the federal sector space as it relates to, for instance, sexual misconduct, that requires an organization then to investigate and then promptly do something about the underlying allegations.

Leaking is very different.

Leaking is where maybe an individual is providing the information for reasons apart from … the public good, as an example. Indiscriminately disclosing information, for instance to WikiLeaks, where there might be another alternative that is provided for by law. And where the individual is not careful in terms of what they’re disclosing: For instance, classified information would potentially put us into the realm of being a leaker as opposed to someone who is in fact a whistleblower.

So a whistleblower is someone who is doing the right thing; following the established mechanism; and … disclosing only what is necessary in order to potentially correct the harm or the illegality.

Baranowski: Right so it sounds like established mechanism is a really important part of that, if I’m understanding you correctly then.

Oswald: It really is and, you know, there are rules. For instance, the Securities and Exchange Commission has rules that require certain types of whistleblowers — attorneys, accountants, people who are in let’s say the audit function — to actually use [internal company mechanisms] first, before they go outside [their own] organization. And that’s a requirement of those rules.

And the Department of Justice, when evaluating whistleblowers, for instance, in the space that deals with public monies, will give additional credit to individuals who have disclosed in their corporations internally first, as an example.

So identifying the appropriate mechanism for whistleblowers is important and if they follow that mechanism then they’re going to be on really firm, firm ground.

Baranowski: So then, by that sort of definition, Edward Snowden, Chelsea Manning, they would not be whistleblowers — but I guess you would call them leakers, right?

Oswald: You know I’ll tell you, that … that’s a tough — certainly as it relates to Edward Snowden, I think it’s a tough call. I mean we have a judge that has come out, a very conservative judge, in our federal district court here that has said that what Edward Snowden disclosed was illegal behavior on the part of the federal government. That’s the classic type of information that, if disclosed by an individual, would bring them well within the realm of being a whistleblower. So from that perspective, you know, I think that that very much inures to his benefit.

The problem I think with Edward Snowden — and certainly it’s the issue with Chelsea Manning … is the extent to which information was disclosed. I mean with Edward Snowden’s case, as an example, the fact that we were monitoring the communications of foreign leaders: That’s not illegal, and certainly was classified, and so the fact that he disclosed that information along with what turns out to have been illegal is kind of a strike against him, if you will.

So I think both of those are tough calls. … It’s a fact that they indiscriminately disclosed information rather than disclosing information in a targeted way and only enough to expose the illegality.

Baranowski: So it sounds like that’s, that gets into a really sort of tricky part when you’re talking about classified information. Any sort of release of [that] of course would, I guess, by definition be illegal? And so if the classified activity also happens to be itself illegal it’s kind of a — it puts a person into a difficult position.

Oswald: It really does. And you can imagine someone in that situation even saying, ‘Look, I mean I don’t even think that this should be classified information. And how can a government agency’s illegal conduct be classified?’

I think those are really good points, and that’s the conundrum that someone who is in the classified space is in. So, you know, what do you do? I mean if you’re a — [if] you have a security clearance, you have access to classified information, [and] you know that what you’ve discovered in fact would constitute illegal behavior that ought to be exposed?

Well, there are some mechanisms that an individual has — some options [whistleblowers] have in that situation.

The first [option] is a disclosure to the Inspector General within the [appropriate government] agency. The Inspector General Act of 1978 requires [federal] agencies to create separate functions within [each] agency: The Inspector Generals, whose responsibility is rooting out corruption and illegality in those agencies, so that’s a really good first place to start. And the law provides protections for individuals who use that route. So that’s a really good place to begin.

The second possibility is to disclose to Congress. So you know we have a different branch of government here. There is a mechanism by which one can disclose information that is classified to a congressional committee that has the responsibility for the oversight for that area and those — the individuals on that committee — are themselves … clear[ed] to view that information. It has to be carefully done; there are some prerequisites that a whistleblower would have to meet. But that’s a possibility.

And the final possibility is to actually notify the third branch of government, the judiciary, and to file a complaint under seal with a federal district judge to notify [the] judge that, in fact, illegality has occurred. The mechanism — or one of the mechanisms — to do that is a statute called the False Claims Act, which was passed in the wake of the Civil War by — championed by President Lincoln in 1863. …

Baranowski: Do you think that employees of the federal government, or of state governments I guess, are aware of these options? I’m thinking again, you know, in terms of someone like an Edward Snowden. Would he, you think, have been aware of these options that would have put him in I guess a lot better position legally than the route that he chose to take?

Oswald: You know I suspect that a lot don’t, and this is a fault of both our contracting system and those arms within agencies that are responsible for disseminating information about these various options to employees.

So you know one of the things that is required of contractors, when they contract with the federal government, is that they’re required to disseminate, to their employees, information about disclosure of potential illegality that they may … come upon — and the option in particular to go to the Inspector General with that information.

Unfortunately, you know what we see is that many of these contractors don’t conduct that training. They just simply don’t do what they’re required to do under the law to notify employees of the routes that those employees have. And so it is far too infrequent that we see agencies either requiring these contractors to conduct the training or that the contractors are actually doing it when they win these awards and they come in to take over that business.

Baranowski: You mentioned that there’s an obligation for the organization to consider and act on these claims but I’m wondering, what about the whistleblower him- or herself? What sort of protections do people who come forward and use the correct mechanism have?

Oswald: There are a number of different statutes that do protect employees in these situations. An important one is the statute that protects individuals who disclose fraud on the government, and this is — this emanates from the False Claims Act, the one we just talked about earlier. It prohibits an employer from retaliating against an employee because that employee has used the employer’s stated mechanism to disclose a potential fraud on the United States government — billing fraud, as an example, or healthcare fraud, mortgage fraud, these kinds of things. To the extent that an employee in the private sector is aware of and discloses the information, she can be protected under those circumstances.

Federal government contractors have even broader protections in the workplace to the extent that they disclose illegality or a workplace-rule violation that relates to that contract, and they do so either internally or to the federal government, they’ll be protected from any kind of harm that an employer might beat out.

So there are statutes that are out there. And what we see at The Employment Law Group on a routine basis is the fact that employees know about wrongdoing [but] they just don’t know what the established mechanism is within their company. They don’t know that there are protections that apply.

One of the first things that we do is, we counsel employees to get a copy of their handbook — let’s say their employee manual or their internal ethics guide — and most of those manuals or ethics guides will [list] in there a point of contact, someone that you can go to and disclose information that you believe there might be illegality afoot.

And what we recommend is that the employee do so in writing. A lot of employees say, ‘Look, I don’t want to go out on a limb that way, it would be — there’d be a record of my disclosure.’ But it’s exactly because there is a record of the disclosure that we recommend it. Then the organization really is compelled to look into it, to investigate. There’s no question what the employee in fact disclosed to the organization, and when the employee disclosed the information.

So at The Employment Law Group we’re always counseling employees to give their employers a chance to do the right thing at the outset. Because there really are organizations that will do the right thing, that have an interest in stamping out illegality in the workplace. They just don’t know about it, and they need to know about it.

But it is also that internal disclosure — and doing so consistent with the employer’s stated mechanism for disclosure — that is going to trigger the organization’s obligations to do something and … cloak that employee in the protections of the statutes that we just talked about.

Baranowski: Yeah, now what about at the state level? Do most states have fairly similar protections for whistleblowers, or are there pretty big differences?

Oswald: There really are big differences. Some states have broad protections, like New Jersey as an example, which probably has the nation’s broadest whistleblower protections for employees of private companies. Other states have protections that are very broad for public employees, those who work for the government or maybe work for a contractor of the government. Still others have very minimal protections. Georgia is a really good example; New York is another good example of that.

So it really is going to depend upon the state in which the employee works, or where the employer is located, the extent to which those protections apply. It’s always a good thing under the circumstances to get in touch with a lawyer to ask questions about, ‘Hey, you know, what are those protections? What do I need to say in my disclosure in order to trigger the particular protections that state law might provide under the circumstances? And where [should I] disclose?’

Because, for instance, an employee who works in Georgia but discloses to their corporate headquarters in New Jersey might in fact be protected by New Jersey’s law, so long as that employee makes the disclosure — in essence, sends the e-mail to the right place.

Baranowski: Given that there are a lot of differences at the state level, I want to just focus on the federal level for one final question before we move on. Are current whistleblower protections, in your view, at the federal level pretty good? Or are there certain changes that you think would improve the situation?

Oswald: Well that’s a really good question. In part the Supreme Court is going to answer that question later this term. It heard oral arguments in a case where corporate America is arguing that the Dodd-Frank Act’s whistleblower protections do not apply to an individual who discloses internally — that it’s only an external disclosure to the Securities and Exchange Commission that will protect that employee in the workplace. …

If the Supreme Court, as is likely, comes down in favor of an interpretation of the statute where employees are not protected, maybe the most important thing to know is that the [other] protections that are out there require employees to act quickly.

The Department of Labor’s Office of Safety and Health Administration administers a whole host of statutes, more than 20, that protect individuals who work for publicly traded corporations, who work in the nuclear field, in surface transportation, airlines, just to name a few. Some of these statutes have very short deadlines, some as little as 30 days.

An employee, in order to protect himself fully, will need to notify the Department of Labor within that very short period of time in order to take advantage of those protections. So it’s really important to talk to a lawyer early so that you know what protections are out there. …

Baranowski: I’d like to move on now to another area that I’d really like to talk with you about, another area of expertise for you, and that’s employment discrimination and wrongful termination. First off, how big of a problem is this, in your view?

Oswald: I think it’s an endemic problem, and we’re really seeing some … not-so-implicit bias coming to the surface over the course of the last year. Illegal discrimination in the workplace is alive and well, unfortunately, and it manifests itself in many different ways.

There’s a real pay disparity between men and women in the workplace. That’s not new, but maybe the extent to which it’s out there, I think, is coming into sharp focus. We also see, still, vestiges of race discrimination, national origin discrimination on a routine basis. And what’s interesting is where … certain supervisors who maybe harbored these biases were nuanced in their approach until the last year, what we see now is people coming forward and [expressing bias] in a much more open way.

We’re also seeing a backlash of political discrimination — of views individuals might have on both sides that are getting them into real hot water in the workplace. … I think that’s [also] much more in the open today than it was before. For civil rights lawyers like myself, it’s a real challenge because what we have to do is not only uncover it, but then prosecute these actions against these companies that, in many instances, don’t want to do anything about it.

So it’s a real challenge, for sure.

Baranowski: How difficult is that to demonstrate? I would think in a lot of cases it would come down to he-said-she-said situations — or employers could find plausible reasons for why they didn’t promote somebody or give someone a raise, that sort of thing, because so much of this seems to be very subjective. So how does that work exactly?

Oswald: Yeah, it’s a really good question. Well, the way it works legally may be a little bit different than how it works in practice before a jury, so maybe just a quick distinction.

The law provides for two ways to show discrimination in the workplace. The first is the kind of discrimination that is out there in the open: Where someone says, ‘Look, I’m not giving you the raise because you’re female,’ or ‘I just don’t like you because of your race or your national origin.’

Those kinds of situations we’re seeing more of over the last year, but they’re still certainly a minority. I mean, most supervisors are — you know, they’re more careful and nuanced … about what their true intentions are. It’s those cases, where someone isn’t saying this kind of thing, that [are] harder to prove. So what we’re looking at is what the law calls circumstantial evidence.

We put people to death in this country on circumstantial evidence. So the law does embrace circumstantial evidence. It’s just as powerful as direct evidence of discrimination, but it’s harder to root out, it’s harder to show. Generally what we’re doing is we’re showing that an employer has treated a certain class of individuals very differently than other classes — or that they, you know, violated their own internal protocols, their own internal rules in discipline or in promotion opportunities.

When we can show these kinds of things to a jury and we can show that it really goes beyond simply one case [and] there’s a larger problem afoot within an organization, juries are more apt to act in those situations than in a one-off case. So what we’re looking to do is to show that there’s a larger problem within the organization that a jury has to address.

Baranowski: Now, one thing I hear from some people is, ‘Well, geez, I’m all for you know, not having overt discrimination — and of course I’d never do that. But I feel like things have gotten to the point when I can’t make an innocent remark. I have walk on egg shells around anyone who is of a different gender or of a different race.’

They feel that, it seems to me, that things have gone too far the other way. How do you respond to that sort of comment or concern?

Oswald: Well, you know, I completely get it. And we’re hearing a lot of that in the wake of some of the high-profile instances that we’re seeing in the media today.

One thing I want to point out is that the allegations against some of the individuals that we’ve heard about are certainly not in this [egg shells] category. You know, the fact that people are using their power in order to, for instance, compel women to engage in sexual acts or other kinds of behavior — that is completely beyond the pale. That’s really what we’re seeing right now in the news, and there just is no excuse for any of that under any circumstance.

What you’re really referring to is a situation where someone might make a one-off comment in the workplace. The thing to know is that the law does not necessarily require an individual be disciplined for the one-off comment. Generally what’s unlawful, and therefore what a corporation must act upon, is a pattern of behavior on the part of somebody. So you’re making comments on a routine basis, as an example. But even the one-off comment, if severe enough, can be enough to get you fired — and rightly so. I mean, certain words are inappropriate … in any context, including the workspace.

My advice to individual employees is simply not to say in the workspace what you wouldn’t say to your nine-year old daughter, quite frankly. If that’s something that you wouldn’t repeat in your own house, then don’t bring it in the workspace. I mean, that’s a pretty clear rule that all of us should follow.

My sense is that employers have an obligation to create a safe and healthful workspace for all of us. This is the space where we’re all thrown together — different backgrounds, different ages, different perspectives — and we have to be sensitive to the point of view of others in the workspace.

Employers really walk a tightrope to ensure that that’s the case, so we just need to check our biases at the door to the extent that we can.

Baranowski: Yes, absolutely. You know the U.S. Equal Employment Opportunity Commission, that’s the agency responsible for enforcing federal anti-discrimination laws — I’m wondering if you’ve noticed any differences in approach, aggressiveness, or I guess really anything else between the Trump and Obama EEOC?

Oswald: Well there sure has been, for sure.

First off, I think what’s important to know is that we’re seeing an uptick in certain kinds of discrimination [being brought to] the EEOC. For example, we’ve seen a real uptick in claims of age discrimination in the workplace and I think that this a product of two things.

The first is that we’ve got people that are having to stay in the workforce much longer than they otherwise would, [in anticipation of] the shredding of the safety net that may be coming in Congress, as an example. This has a real impact on real human beings and if that’s allowed to occur and, you know, we see a change in Medicare and Social Security, as an example, it’s just going to accelerate this process and people are going to have remain in the workplace longer and longer in order to support themselves and their families. So I think that age discrimination claims are going to increase maybe quite a bit over the course of the next five to ten years.

We also see an uptick in retaliation claims before the EEOC, where individuals are coming forward in good faith [with internal complaints to their employers] and they’re experiencing retaliation. And I think most of the time this is happening because companies don’t have vigorous anti-retaliation policies in place — or if they do, they don’t train upon them. …

With the EEOC, I think the change will be that the EEOC is simply not going to prosecute the number of cases that it did during the Obama administration. The EEOC during the Obama administration was very willing to prosecute individual cases that they felt were meritorious and that’s a real investment of time and resources. …

[But] even under the Obama administration, the EEOC’s budget remained mostly static. I think what we’ll see in the [Trump] era of the EEOC is a lot less prosecutions and a lot more of what they will call ‘voluntary compliance’ with employers.

The reality is, though, that there simply is a sector of corporate America that will not comply with our EEO laws unless they’re forced to. And so this change in approach will have a real impact, especially on companies that are not in the top tier [and] don’t have … anti-discrimination policies and human resource organizations that are dedicated to eradicating discrimination in the workplace. …

Baranowski: One final question for you. Are there any changes — whether legislative or in terms of enforcement — that you think would improve on the current state of things in employment law/anti-discrimination?

Oswald: If the Supreme Court comes down the way we think it will under the Dodd-Frank Act, and finds that internal disclosures do not trigger the protections of that important law, I think that would be a change that Congress can make, for sure, to protect individuals who disclose potential illegality within publicly traded corporations.

Another change that has been out there, but has not yet been enacted, would be a whistleblower provision that would protect individuals who disclose tax wrongdoing — for instance, tax evasion or potential violations of other tax laws. There is not currently a statute to protect individuals who disclose that information within corporate America, so protections for tax whistleblowers would be an important change as well.

And you know, given the fact that the Internal Revenue Service has a decreasing budget and fewer resources to enforce our tax laws, a change in the False Claims Act, which right now excludes tax whistleblowing from its provisions.

The reality is that there are literally billions and billions of dollars that are being improperly withheld from the federal government that should be paid as part of corporate America, or in individual taxes, that are escaping detection right now. If the False Claims Act were changed to include this kind of tax evasion, that would potentially make a huge dent in that area as well.

So these are changes that Congress could enact almost immediately to protect the federal fisc and to protect shareholders who are investing in corporate America from being fleeced.

Baranowski: That sounds like some reasonable changes to me. So with that we will close. Scott Oswald, thank you so much for taking the time to talk with me today.

Oswald: Hey, you are welcome. It is my pleasure and I look forward to being with you again.

Baranowski: That’s it for this Politics Guys interview. Thanks for listening — we hope you like what you heard.

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