By Carney Shegerian
From all angles, the current happenings at the University of North Carolina-Chapel Hill (UNC) involving whistleblower Mary Willingham form a complex, high-profile situation, involving a large swath of administrators and athletes all allegedly complicit in their acceptance of substandard ethical compliance. From a legal standpoint, Ms. Williamson’s fight to stand firm on the laws protecting her as a whistleblower is at least a plausible one. Thus, it would seem that there are important lessons to be learned from the entire ordeal.
The Law Responds When an Employee Blows the Whistle
When Mary Williamham, a former learning specialist for the UNC Academic Support Program, decided that enough was enough, she joined the ranks of a number of whistleblowers who have pulled back the cover on scandal after scandal over the decades. Ms. Willingham’s job was to assist student athletes with academic challenges through tutoring and educational assistance. This task placed her up close and personal with the inner workings of an alleged large system of academic fraud, with school officials turning a blind eye to the “functional illiteracy” among UNC student athletes.
Though not yet proven, no doubt, the purpose of such head-in-the-sand practices was to require that everyone involved keep knowledge about the player’s less than third grade reading ability, and, in some cases, absolute illiteracy, a secret. In other words, it meant that administrators should operate under a tacit agreement – an unspoken understanding – for the sake of maintaining their jobs and the prestige of a high-profile athletic program.
The oppressive type of employment atmosphere described in Ms. Willingham’s case is not a novel one. Over the years, the highest levels of every sector of industry, education and commerce have generated complex and intense whistleblowing climates. When whistleblowers decide to break the silence, however, the law springs up to protect them, and the current situation at UNC is no different.
Whistleblower Protection Laws Teach Smart Lessons
There’s a good reason why Ms. Willingham is standing firm in her position despite heated disagreement from UNC coaches and administrators. Top whistleblower protection laws like those found in the Occupational Health and Safety Act (OSHA), the Federal Labor Standards Act (FLSA) and the Whistleblower Protection Act, provide ample protection at the federal level and state laws offer further protection as well. These and other whistleblower and anti-retaliation laws are designed to build a hedge around employees who place their jobs and solid income on the line in deciding to expose company violations of the law and ethical standards.
There is much to be learned from whistleblower law. OSHA, for instance, protects workers from employers who discharge or discriminate against an employee because he or she has “filed a complaint or instituted a proceeding under the OSH Act or is about to testify in such proceeding.” Although there is no private cause of action under OSHA’s whistleblower provision, an aggrieved employee can file a complaint with the Secretary of Labor within thirty days of a violation.
According to OSHA, the Secretary has authority to order all appropriate relief, including the aggrieved employee’s reinstatement with back pay. Similarly, state laws with hefty remedies for aggrieved whistleblowers are also designed to keep wayward employers in line with ethical standards.
State Law Protects Whistleblowers from Harassment and Discrimination
In the current case, a 37-year-old whistleblower watch dog group, the Government Accountability Program (GAP) could assist with the use of North Carolina law to obtain protection for Ms. Willingham. The group alleges that Ms. Willingham has experienced harassment and retaliation in the wake of a January CNN report exposing poor literacy rates among UNC student athletes and has called for the university to conduct a thorough investigation. The group also alleges that the university has attempted to smear Ms. Willingham’s reputation by publicly questioning and disavowing her research methods.
Most state whistleblower laws have the authority to protect whistleblowers when they 1) report unlawful incidents to 2) someone outside of the place of work. It is not necessary that the incidents be reported to police or government officials. In North Carolina, whistleblowers who are “discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against” can obtain protection from the False Claims Act (30 U.S.C. Section 3730(h)), a broad sweeping statute designed to protect the government from false claims as well as provide protection for whistleblowers.
According to the statute, whistleblowing employees are entitled to “all relief necessary to make the employee whole.” This may include reinstatement, two times the amount of back pay lost, interest on the back pay and compensation for “any special damages sustained as a result of the discrimination,” including attorneys fees and costs. These are hefty prices to pay for non-compliant employers.
Best Practices to Avoid the Whistleblower Conundrum
The whistleblower scenario presents a significant amount of risk for employers whose policies or employment practices center around fraudulent or illegal activity. It stands to reason that most employers would be extremely vigilant in their efforts to avoid even the appearance of unethical behavior in light of the heavy consequences and detrimental exposure which results from the whistleblower experience.
Many employers rely on compliance programs or company whistleblower policy to avoid lapses in ethical behavior and to prevent the kind of fraudulent activity that would lead a whistleblower to take action. The purpose of such programs is to outline the steps and tips for best possible adherence to federal and state laws. When these programs are effective, companies stay within ethical guidelines and whistleblowers have very little cause to to expose non-compliant behavior.
However, in some cases, even with compliance programs in place, employers may continue to engage in illegal or fraudulent behavior, deeming the importance of certain business prospects or the prestige of the organization more important than abiding by ethical standards. This type of climate in the workplace is to be avoided if an employer wishes to remain free of the risk of having a whistleblower finally make the decision to speak out.
The stakes are high when whistleblowers take action, and the employer’s reputation and financial stability could be placed on the line. In a high-profile case like the situation at UNC, employers of all kinds would be wise to take note of the current firestorm.
Carney Shegarian
Carney Shegerian is founder of Shegerian & Associates, a Santa Monica, CA based law firm specializing in employee rights. An experienced trial attorney and Trial Lawyer of the Year Award winner for 2013, Shegerian has tried many jury trials to verdict in both state and federal court, representing individuals that have suffered financial or emotional losses and have been wronged by employers, including major corporations. Shegerian has built a remarkable career on helping those who have been wronged in the workplace. His remarkable success rate is highlighted by over 68 jury trial wins, including 28 seven and eight figure verdicts representing employees.
Sources:
1. Survey of Federal Whistleblower and Anti-Retaliation Laws, (April 22, 2013) Congressional Research Service, www.crs.gov.
