Whistleblowing in the COVID-19 era

Literature Review

COVID-19 events exposed the systemic weakness in global whistleblower protection laws[1]. Reports from Whistleblowing International Network (WIN) show that gross negligence among governments is responsible for retaliatory attacks on medical professionals and frontline workers who reported unethical practices[2] like Li Wenliang[3] and the following:

  • Dr. Ai Fen from Wuhan Central Hospital, who suffered retaliation from superiors after making unapproved public statements on COVID-19. She later disappeared. Similarly, many doctors and nurses were allegedly summoned by the Chinese police for whistleblowing about coronavirus.
  • Ming Lin (emergency room physician in Seattle, WA) was fired for granting an interview to a newspaper about inadequate testing and lack of protective equipment.
  • Lauri Mazurkiewicz (nurse in Chicago, IL) was fired by Northwestern Memorial Hospital, for violating disclosure agreement by complaining to friends about the quality of available protective masks.

Furthermore, Christian Smalls (an Amazon employee in Staten Island, New York) had his contract terminated for criticizing the company’s negligence of workers’ safety during the COVID-19 pandemic. In London, the National Health Service (NHS) allegedly warned health workers against granting interviews or reporting their health and safety concerns to the media. The New York University (NYU) Langone Health system also threatened to sack any employee found to have without authorization divulged private information to the media. Interestingly, US naval officer, Brett E. Crozier lost his job for documenting the Navy’s inability to move sailors off an aircraft carrier named “Theodore Roosevelt” or provides them with proper safety equipment against virus outbreak. He later tested positive to COVID-19. These examples highlight the pivotal role of whistleblowers in enforcing accountability and transparency and strengthening public trust[4]. Good corporate governance therefore, lends credence to the effectiveness of whistleblowing activities and the level of protection offered in legal systems[5].

Scheetz and Wall[6] used a global approach to understudy whistleblower rights[7] and found that most countries lack effective legislations and institutional framework for whistleblower protection, thus, making it impossible to prevent abuse of power, mismanagement of funds, corruption and money laundering. So, fear of retaliation from employers (which may take the form of demotion, contract termination or lawsuits) discourages potential whistleblowers. To this regard, one of the international legal structures established to encourage whistleblowing activities and improve transparency in public/private establishments is the United Nations Convention against Corruption (UNCAC), which was ratified by over 190 countries. But an obstacle to achieving UNCAC objectives is employees’ ignorance of whistleblower rights and policies, including lack of standardization in implementing UNCAC provisions and other regional and/or international framework[8]. The scholar suggested a multi-stakeholder approach that allows partnership among the media, civil society, international organizations, governments and labour protection/anti-corruption agencies[9].

Moore et al[10] agreed that retaliatory actions against whistleblowers present danger to public health and safety[11], also noting that whistleblower protection is the bedrock of transparency reforms in corporate governance. But most countries are yet to enact and strictly enforce legislations for this purpose. Further, the scholars examined whether whistleblowing is helpful to the company or harmful and found that employees are most likely to report concerns of unethical practices internally (rather than outside of the company) if they trust managers to be fair.   

Mintz[12] acknowledged that retaliatory actions against whistleblowers are fairly standardized across organisations and industries. For example, retaliatory actions are classified under: nullification, a situation where attempt to “disarm” whistleblowers and their information through intimidation; isolation, when access to the alleged data is taken away from whistleblowers; defamation, if a whistleblower’s reputation is tarnished and his/her qualifications or sanity questioned; and, expulsion, when the employee is finally forced out of the organisation either by firing or forced resignation[13]. The scholar cited cases where whistleblowers were expelled from an entire industry through blacklisting. Highlighting the importance of institutional, normative and judicial framework at the global level where governments and corporate organisations are most likely to choose profit maximization (including bribery and money laundering) to the detriment of the law. Few examples of global whistleblower issues are Snowden, Panama Papers, Cambridge Analytica, Dieselgate and LuxLeaks.

Despite the perceived usefulness of reporting, most potential whistleblowers face the ethical challenge of blowing the whistle or not. This is more so because employees must be sure—with facts—that a wrongdoing has occurred. Further, there’s an ethical question of whether the wrongdoing is so bad that it outweighs any duties of loyalty they owe to their employers. Findings show the price of whistleblowing ranges from firing, downgrading and discrimination. However, the Sarbanes-Oxley Act and the Whistleblower Protection Enhancement Act (enacted by President Barack Obama’s administration in 2012) safeguard investors by making corporate disclosures more reliable and accurate. These statutes also ensure that traded companies and statistical rating organisations do not retaliate or discriminate against whistleblowers who take actions to protect shareholders and/or tax-payers interest.

References


[1] As per 1

[2] Moore M A, Huxford J and Bethmann J B “National Security Whistleblowers and the Journalists Who Tell Their Stories: A Dangerous Policy Dance of Truth-finding, Truth-telling, and Consequence, Corruption, Accountability and Discretion 2017 Public Policy and Governance (29) 227-246

[3] House B, Johnston B L, Johnson P and Worcester C “SEC’s enforcement action against hedge fund adviser for retaliation against a whistleblower highlights challenges employers face” 2014 Journal of Investment Compliance (15) (4) 7-10. https://doi.org/10.1108/JOIC-08-2014-0031

House, Johnston, Johnson and Worcester 2014 JIC

[4] Nath N, Othman R and Laswad F “External performance audit in New Zealand public health: a legitimacy perspective” 2019 Qualitative Research in Accounting & Management (17) (2) 145-175

[5] As per 1

[6] As per 5

[7] Ibid

[8] Ibid

[9] As per 14

[10] As per 12       20 As per 13

 

[12] Mintz S “Whistleblowing Considerations for External Auditors under Dodd-Frank: A Blueprint for Future Research” 2015 Journal of Professional Responsibility and Ethics in Accounting (19) 99-128

[13] Ibid