Here are the TOP 10 STEPS public and private employers should consider taking to minimize the risk of whistleblower retaliation claims and build defenses where litigation is unavoidable. These steps are based on lessons learned through litigating whistleblower cases to verdict and counseling employers to minimize the risk of litigation. One important theme underlying these steps is the need to treat good-faith whistleblowers as assets. 

1. Conduct focus groups & surveys

Develop an understanding of your workforce’s beliefs about whistleblowing and attendant retaliation risks through focus groups and surveys. Design questions that will expose whether employees are apt to bypass internal compliance channels (or not complain at all) and why. Focus groups should be diverse in terms of age, length of service, race, responsibility and education.

2. Create and widely disseminate whistleblower protection policies with multiple avenues for reporting

Create and modernize policies on which employees can rely. In addition to codes of conduct, promulgate simple and straightforward whistle-blower protection policies. Include them in employee handbooks and make them available through multiple other channels. Ensure that they provide multiple reporting channels.

3. Conduct whistleblower-specific training for managers

A substantial volume of whistleblower complaints are made directly to managers, and managers’ responses tend to vary and create risks. Managers need whistleblower-specific training on a regular basis to ensure that they respond appropriately to complaints.

4. Break down corporate silos so that HR, legal (employment counsel in particular) and compliance work together

As highlighted in our recent post on the DOJ/SEC guidance regarding the Foreign Corrupt Practices Act, whistleblower claims often implicate employment retaliation issues, performance management, discipline, investigations and critical compliance issues. HR corporate labor and employment (legal) and compliance functions should work hand-in-glove to ensure a fully informed, comprehensive approach is taken with respect to all aspects of the whistleblower response process.

5. Promptly appoint a liaison to the whistleblower

Many whistleblowers head straight to the government or an attorney when they feel isolated or ostracized for complaining. Combat this risk by swiftly appointing a corporate representative to serve as a liaison to the whistleblower.

6. Promptly conduct a thorough investigation, and report back to the extent practicable

Promptitude is critical to a successful investigation, so employers should develop rapid response systems that require investigations to be conducted shortly after a complaint is lodged. Whistleblowers should be advised that certain information must remain confidential, but that the company will provide the results of the investigation to the extent practicable.

7. Oversee the evaluations of whistleblowers who remain employed, with an emphasis on objective metrics

To ensure whistleblowers are not subject to retribution, an HR professional and/or a supervisor – ideally, one who is unaware of the whistleblower’s report – should review whistleblowers’ performance evaluations by using objective metrics to the greatest extent possible.

8. Reward good-faith whistleblowers

Consider rewarding whistleblowers either monetarily or otherwise for the benefit the complaint conferred upon the company. A letter of commendation from an executive to the whistleblower’s personnel file is a good start. So is a bonus, and/or other recognition.

9. Report-out on responses to complaints

Show employees you are committed to protecting whistleblowers and that you take their complaints seriously. Consider providing generalized (anonymous) examples through an internal blog, newsletter or intranet posting. Consider describing the general nature of the complaint, some basics regarding the investigation, the speed with which the matter was resolved, the benefit the complaint conferred on the company and, if applicable, the benefit the whistleblower received for reporting.

10. Hold an annual “Ethics & Compliance Day”

Dedicate one day each year to focusing on the need for transparency, accountability and ethical and lawful conduct. Invite outside speakers with expertise in corporate ethics, deliver training on the code of conduct, whistleblower protection and anti-retaliation policies, and hold sessions with employees focused on your core values.

This post summarizes an article we submitted to Business Insurance (subscription required), which was published on December 2, 2012.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower…

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers. Chambers has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a ”Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal. The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

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