David Marshall Offers His Insights on Best Practices for Whistleblowers

Katz, Marshall and Banks partner David Marshall was quoted in Lifehacker, a Gawker subsidiary, in an article entitled, "How to Be a Whistleblower." In the article, author Leigh Anderson discusses the best practices for potential whistleblowers when considering whether to take action and report issues. Mr. Marshall noted that the first thing individuals should know is that whistleblowers are generally protected under federal and state law. He said, "The whistleblower protection laws (of which there are a couple dozen federal laws and many state and local laws), are designed to protect employees who speak out about matters of serious public concern." While protections vary by issue, context and industry, they do share several commonalities. These include reporting the problem internally, documenting concerns in writing, and being specific with complaints. "In order to be protected," Mr. Marshall said, "the employee has to engage in 'protected activity' - which usually means complaining in good faith about what they reasonably believe to be violations of the certain laws." In other words, to be protected, employees must complain "somewhat specifically about unsafe or illegal practices. And they have to report those issues either to supervisors within their company or to various regulators." Importantly, he noted, "“In most contexts employees are not protected for reporting wrongdoing to the media, or in social media, or a to a company’s customers or to the employee’s own friends. The speaking out has to be directed to those in positions in responsibility, whether within the company or at government agencies."

Would-be whistleblowers should also be careful not to cross the line in gathering evidence. “An employee has to act reasonably. They cannot just go rifle through the file cabinets at night and collect troves of documents, grabbing up whatever they think might possibly bear on the issue," Mr. Marshall said. Downloading large quantities of data, particularly to information that they would not be able to access normally, can subject whistleblowers to lawsuits from the company and weaken their case. Finally, Mr. Marshall recommended consulting an attorney before taking action. To read the full story, click here