How to Prevent Retaliation: 6 Practical Steps

If we are going to prevent violations and create credible and effective compliance and ethics programs there is no question that there needs to be an effective speak up system that people feel free and safe to use. But it is also true that fear of retaliation is a serious deterrent to speaking up.  Other than merely stating a policy against retaliation, how do we bring such a policy to life and have an environment where anyone can safely speak up?  Here are some practical steps to achieve this goal.  

1. Add retaliation to your risk assessment process

Retaliation is a serious risk that can undermine a company’s culture.  It can be lethal for a compliance program.  But it is also an area where legal risks have ballooned.  Numerous statutes in the US and around the world impose serious legal sanctions for retaliation.  Sarbanes-Oxley, Dodd-Frank and the EU Whistleblower Protection Directive are clear examples.

While it also makes sense to spell out a strong policy against retaliation in a company’s code of conduct, it is never a good idea merely to rely on a policy to get results.  A policy is only a starting point, not a finish line.  Rather, companies need to recognize how pervasive a risk retaliation can be – both in formal management steps against whistleblowers and in the informal shunning by managers and employees.  If there is no active intervention to prevent retaliation, there will be retaliation in one form or another. 

These points should also be taught to supervisors, so they understand the inherent bias that exists against whistleblowers. By understanding Barnard-Bahn’s six-step process for effectively delivering bad news,[1] supervisors can learn how to be more welcoming recipients of tough messages, managing their own reactions to those who speak up, and taking appropriate action.  

2. Use a complaint tracking system

Companies need to follow up with those who speak up.  This inquiry needs to go deeper than just the surface level of asking someone if they have been retaliated against. They may not always recognize backlash when it happens, such as the more subtle forms of shunning by bosses and peers. Helpful questions could include, for example, asking whether the person was no longer included in team meetings.  

There should also be objective comparisons of the person’s treatment before and after speaking up.  For example, were performance evaluations negative only after the event? Consider that the standard here is not a legal one.  Rather, the question is fairness and perception by other employees.  If people believe there is retaliation, even if it does not meet a legal standard, the results on the culture are just as negative. 

Companies also need to consider the saying that “revenge is a dish best served cold,” or the boss who waits for an opportune time to retaliate.  Thus the follow up needs to be extended over time.  

3. Ask about retaliation at exit interviews

Exit interviews are important tools for compliance and ethics programs.  They can provide useful insights about retaliation and the perception of retaliation.  Exiting employees can be asked if they have ever felt that they were retaliated against for speaking up. As important, they can be asked if they have ever seen this happen to another employee or heard about this happening. 

Be careful here not to draw legal conclusions and keep in mind that such questions are indicators of the culture, and not determinations of legality. Nevertheless, if employees perceive that retaliation occurs this is a call for action for the compliance and ethics program.

4. Have a fully empowered and independent Chief Ethics and Compliance Officer (CECO) to stand up for whistleblowers

Compliance and ethics programs generally need to have a strong leader to be effective, one with sufficient independence and power to do this difficult job.  This is especially true when it comes to protecting whistleblowers.  Executives are no less prone to the desire to get even than are other employees who feel wronged by a complaint about their conduct. The CECO needs to be correctly positioned so that there is a clear tie to the board that can be used to prevent other senior executives from “getting even” with someone. Without this connection to the power inherent in the board it is not clear how the CECO can ensure protection for those who speak up. 

The CECO also needs the emotional intelligence and training necessary to deliver messages from whistleblowers in ways that encourage others to recognize a fundamental point:  the whistleblower who speaks up within the company is doing everyone a favor. This gives the company a chance to fix things internally and do the right thing.  Given that the person who speaks up has the option of posting online, going to the press or going to the government, those who raise issues internally should be thanked.  A wise CECO knows how to deliver that message. 

5. Be serious about discipline for retaliation and threats

It needs to be common knowledge in the company that anyone who retaliates will pay a serious price for this.  While there always needs to be accommodation for privacy, it is nevertheless possible to publicize throughout the company that those who retaliate are disciplined.  It is especially important to show that this applies at the top of the company, and not just for the workers.  There is no more effective way than publicizing real stories within the company, while removing any information that would identify who was involved. A story about a senior person who faced serious discipline for even threating retaliation can quickly become part of the company’s culture. 

As a practical matter it may be necessary to leave some time between the incident and the public story, in order to protect privacy. But if the company is determined to use this valuable story-telling tool there are ways to do it and still remain effective. 

6. Hire whistleblowers

How can you send a stand-out message throughout the company that you respect whistleblowers?  Hire one.  The experience of whistleblowers is often that they are treated as outcasts and not considered for hiring by companies.  There are excellent potential employees out there who have been abandoned.  By letting it be known that you consider this to be a positive trait, a company may attract excellent candidates who may have already had to give up on employment in that industry.  All industries have grapevines. It is not necessary to post an ad that says “whistleblower wanted.”  When companies want to get this word out, simply letting employees and managers know that speaking up is favorably treated will likely find its way into the marketplace.

The opening to be filled might be for a compliance role or a position in another control-oriented group, such as safety or auditing.  Best would be for a position that uses the applicant’s existing skills.  But letting it be known that this is a characteristic the company views favorably and then actually hiring someone who has spoken out elsewhere shows real commitment.  If follows the saying that “your actions speak so loudly I cannot hear your words,” meant to convey the point that talk is cheap but actions really count.

Similarly, in evaluating existing employees and managers, it can be made clear that speaking up is a factor considered in evaluations and promotions.  Along the same lines, leaders should get favorable treatment for being a good listener and one who supports employees when they express concerns.

Can a company absolutely prevent retaliation or remove all fear of retaliation?  Likely this is not possible, but there are certainly meaningful steps that can be taken that go beyond mere words in a code, and will show the company’s good faith in promoting a speak up culture.

[1]  Amii Barnard-Bahn, The art and skill of delivering bad news, https://www.complianceweek.com/opinion/the-art-and-skill-of-delivering-bad-news/31996.article