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Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

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Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

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Jewish World Review Feb. 12, 2007 / 24 Shevat, 5767

Should I Blow the Whistle?

By Rabbi Dr. Asher Meir


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Weighing the risks and damages


http://www.JewishWorldReview.com | Q: My employer engages in scandalous exploitation and abuse of his clients. But I'm afraid that if I report him to appropriate authorities I'll be considered a troublemaker and will have trouble finding work.


A: Reporting illegal or unethical behavior by one's employer is generally known as "whistle blowing". Whistle blowing is a favorite topic for business ethicists, who generally ask, When is whistle blowing permissible and ethical? How does an employee balance his duty of loyalty to the employer to his responsibility as a good citizen and neighbor to defend the well being of the community?


But many potential whistleblowers face a much different, and often much more difficult dilemma. In many cases it is clear that whistle blowing is permissible. For example, if the employee himself is the victim, then there is no question of competing loyalties; a person is always allowed to defend his own interests (in a fair and legal way). Other times the violation is so blatant that it is clear that loyalty to the employer doesn't trump it for a normal employee. (The situation may be different for lawyers and others who have special duties of loyalty in order to ensure that each person, guilty or innocent, has access to adequate legal counsel.)


Perhaps the most common dilemma for whistleblowers is yours: How do I balance my obligation to the community, to protect them from unscrupulous business practices, with my obligation to myself, to protect my reputation and my career?


It is very sad that this dilemma exists at all. Certainly there are occasional troublemakers in every industry, but when a whistleblower exposes proven and severe misconduct he should be extolled and not shunned. Sadly, experience shows that a whistleblower is well advised to consider the possibility that defending himself or his neighbors might sabotage his career.


One piece of advice that applies to anyone considering blowing the whistle is to be scrupulous and zealous in collecting evidence. Carefully record every instance of wrongdoing including date, time and details; carefully save every piece of evidence that is permissible for you to save, and note the exact location of any piece of evidence you do not have access to. Without detailed proof the whistle-blower doesn't stand a chance; conversely, when the evidence tells the story by itself the whistle blower is less likely to be condemned. A lawyer may be helpful in deciding what kind of evidence is relevant and decisive and what is permissible to collect.


Another useful piece of advice is to consider anonymous routes of complaint. Generally anonymous complaints are ignored by authorities, and generally this is the appropriate policy since anonymous complaints are easily abused by disgruntled clients, business competitors and so on. But an anonymous complaint accompanied by detailed evidence is something different; this may give the police, professional association, regulatory body etc. the incentive and ability to carry out their own investigation and you will be off the hook.


In your case, one way you can act behind the scenes is to empower the clients themselves to bring action. You could subtly or even anonymously inform some clients of the unprofessional way they have been treated and then leave the rest to them.


Another possible route is to approach a reporter. This can work if the abuse is newsworthy. This route requires great care. For your own protection, you need to find someone whom you can trust not to disclose your identity; on ethical grounds, you must find someone whom you trust not to publish hearsay and slander but only accusations that the reporter himself has a basis for believing. According to Jewish law, even if everything you say is true, the reporter is not allowed to believe and report it solely on your say-so, and you should take this into account. (1)


In a few cases, a possible solution is qui tam. If your reporting saves a lot of money to the Federal Government, or sometimes even if it saves money to a private individual, you may be entitled to a piece of the cost savings. This is called a qui tam suit. Sometimes this yields a large amount of money, enough to compensate someone for any damage done to their career.


One of the most original and useful solutions to this problem was suggested to me by one of the leading Roshei Yeshiva (Yeshiva heads). The suggestion is to use the threat of a destructive formal complaint to obtain a more modest and constructive settlement. The truth is that in many cases going to the authorities is the worst outcome for all involved. The objective is to fix the problem, not the blame. Following are some examples of how I have proposed to readers to apply this advice:


In the case I consulted this rabbi on, a young lady was being sexually harassed by her employer, a prominent individual in the community. All the young lady wanted was an apology and to be able to work unhindered; she wasn't interested in creating a scandal. Certainly the employer was not interested in a scandal. The rabbi's advice was for the employee to demand an apology and that the abusive behavior cease; if this did not happen she would sue.


Another reader wrote me that he was forced to resign from his job because of religious harassment at his workplace. Prospective employers want to know why he left his job, but he is reluctant to give details because they are embarrassing to all concerned. The suggestion is to go to the previous employer and ask for a non-specific apologetic letter explaining that the employee was unfortunately compelled to leave because of inappropriate treatment by some co-workers. The letter is not really very incriminating but it provides an adequate explanation to other employers and doesn't make the person seem like a job-hopper or trouble-maker. Again, the leverage for obtaining the letter is the threat of legal action or other whistle-blowing which ultimately is against everyone's interest, but the threat is needed in order to obtain the fairer outcome.


One possible application in your case is to approach your employer and explain that you have detailed evidence of his wrongdoing. Make clear that you are not interested in ruining his business, just in protecting his clients. Your ultimatum is that if the abusive behavior doesn't stop, then you will blow the whistle using one of the routes mentioned.


There is no magic formula for knowing when and how to blow the whistle. Some imperfections will always remain: some wrongdoing will go unpunished for lack of proof or incentive to disclose it; some honest firms will suffer from over-zealous whistle-blowers; some whistleblowers will continue to pay a price for their public concern. The alternatives mentioned above are just a few possible ways that some kinds of wrongdoing can be rectified while minimizing as much as practical the risk to the public-minded informer.


SOURCES: (1) Chafetz Chaim volume II chapter 9 section 2 and note 7. Compare Shulchan Aruch, Choshen Mishpat 28:1

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JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology. To comment or pose a question, please click here.

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