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Frédéric St-Martin: How can we protect whistleblowers from retaliation?

There is ample evidence suggesting that retaliation against whistleblowers is common, even in countries with elaborate whistleblower protections.

For instance, the 2013 National Business Ethics Survey (NBES) reveals that 21 percent of United States workers who reported misconduct said they experienced reprisals, down from 22 percent in 2011. The reprisals rate has not always been so high. It used to be 12 percent in 2007, the first year it was measured by the NBES.

Despite this apparent lack of improvement, my research data suggests that the expectation that corrective action will take place is a stronger motivation to report wrongdoing than the likelihood of being protected by law. However, this does not necessarily mean that policymakers should prioritize incentives over protection. In fact, it may be possible to achieve these two objectives with the same set of policy measures.

When asked about which measures were more effective at protecting whistleblowers, the experts interviewed for my study on Measuring the Effectiveness of Canadian Whistleblowing Law generally mentioned ex ante mechanisms, i.e. mechanisms that prevent reprisals and avoid the victimization of whistleblowers. Ex ante mechanisms include the establishment of a recipient who is adequately trained and independent from top management, the implementation of a corporate culture and values favourable to the disclosure of wrongdoing in the workplace, the endorsement of these values from top management, the possibility to disclose wrongdoing anonymously, and providing for more than one route to disclose wrongdoing within or outside the organization.

Ex ante protective measures are also often described as some of the main incentives that make employees disclose wrongdoing in the workplace. They are implemented by the organization and seek to strengthen the credibility of the reporting process by empowering competent people, by ensuring its endorsement throughout the organization, and by decreasing the likelihood of interference and conflict of interests. Therefore, ex ante mechanisms guarantee that disclosures of wrongdoing will be taken seriously and will lead to organizational changes as necessary; and that retaliation will not be tolerated within the organization.

In contrast, ex post protective measures are typically implemented by legislatures and seek to remediate reprisals experienced by whistleblowers. They include clear legal prohibitions to exercise reprisals with associated sanctions, the possibility for whistleblowers to recover damages from their employer, shifting the burden of proof that disciplinary sanctions were not related to the disclosure of wrongdoing on the employer, and the availability of financial support for the whistleblower if court proceedings are involved.

Ex post mechanisms are important as they seek to demonstrate that reprisals against whistleblowers will not be tolerated in a given jurisdiction, and to respond to the failure by some organizations to implement appropriate ex ante mechanisms.

However, ex post mechanisms are insufficient on their own. Policy and lawmakers need to incentivize, and perhaps even sometimes require, organizations to implement ex ante mechanisms within their jurisdiction.

Another incentive-related issue that has not been discussed in this post is whether to grant financial rewards to whistleblowers. Rewards are controversial as they encourage individuals to report wrongdoing for their own benefit as opposed to that of the public.

The next post will discuss different views on whether to grant financial rewards, and whether whistleblower motivations should impact on the legitimacy of disclosures of wrongdoing.

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The first post in this series is here and the second post is here.

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Frédéric St-Martin advises a Canadian financial regulator on corporate governance, anti-corruption controls, investigations and the implementation of whistleblower programs. He graduated from the inaugural IACA MACS 2012-2014 program summa cum laude and received the Best Master Thesis Award in December 2014. He also holds a Master in Law from the University of Montreal, as well as a Bachelor of Common Law and Civil Law from the University of Ottawa. He can be reached by email here and through linked here.

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