Anne Novick Branan, Esq. Broad and Cassel Fort Lauderdale, FL

Transcription

1 Anne Novick Branan, Esq. Broad and Cassel Fort Lauderdale, FL 1 The False Claims Act protects employeewhistleblowers from retaliation by their employer. Companies should reports of potential compliance issues, but must realize that internal reports can create an awkward, uncomfortable work environment for all involved. The situation can be an "minefield" for even the most well-intended employer 2 1

2 Take proactive steps to prevent reporting employees from becoming qui-tam relators. Most powerful defense is an effective compliance and ethics program (CEP) that promotes a culture of ethical conduct & compliant conduct. Focus on strengthening elements of CEP that impact reporting employees "Qui Tam Avoidance Program" 3 A company can solve its problems internally, and lessen the chances of a qui tam action against the company, if: Upper management supports and works with mid-level managers and supervisors to demonstrate a commitment to compliance The company's compliance policies and procedures AND culture/tone encourage reporting internally and effective resolution 4 2

3 Reporting policies should have the following components: 1) A clear statement that employees have an obligation to disclose that compliance issues to the organization 2) The designation of specific individuals outside the chain of command to receive complaints 3) A guarantee that employees who in good faith disclose perceived wrongdoing will be protected from adverse employment consequences Reporting policies must be clearly communicated to all employees and frequently. 5 Not all employees will be comfortable reporting concerns in the same manner. Provide multiple avenues for employees to report concerns -- in person, electronically, by telephone Have procedures for reporting compliance concerns anonymously hotlines, suggestion boxes Frequently solicit input/complaints in annual reviews, staff meetings, exit interviews "open doors." 6 3

4 Establish zero-tolerance policies for retaliation against reporting employees. Train supervisors on non-retaliation policies and procedures frequently. Have consistent policies and enforcement across all levels. Give examples of what will be considered retaliation. 7 Protect individuals who report concerns from retaliation and hostility. Forge a positive relationship with the reporting employee. Listen carefully to the reporting employee's concerns. Treat employees with respect and thank them for keeping the company's best interests in mind. 8 4

5 Assure the reporting employee that the company takes all complaints seriously and will take appropriate action to address his concerns. Communicate/report back to reporting employees on company action follow-up! Protect identity of reporter to extent possible, but don't promise such protection. 9 Supervisors can often feel defensive, threatened or suspicious, and fear they will get in trouble. Train supervisors to remain calm and neutral when talking with a reporting employee to prevent a situation from escalating. Reward reporting employees. Supervisors must elevate issues of concern to appropriate party within the company. 10 5

6 Train managers at all levels how to recognize employees who may be a potential whistleblowers and how to properly respond to complaints. Use incentives and discipline to shape employee behavior about reporting and nonretaliation training alone is not enough. Publicize success stories, resulting from reports by employees 11 HR has a relationship with all employees; often seen as an "employee-friendly" department Reporting employees may feel more comfortable reporting compliance deficiencies to HR. HR is positioned to identify employees that are not happy with the company's ethical climate (in annual reviews and exit interviews). Train HR in how to handle complaints they receive and respond to reporting employees. 12 6

7 HR is experienced in dealing with people issues, legal and compliance may be viewed as having more of a "policing" role Coordinate firing/disciplinary decisions with HR, Legal and Compliance Departments Be sure poor performance is documented for all employees to support discipline that may be needed later Conduct exit interviews to identify unreported compliance issues and disgruntled employees 13 Promptly investigate legitimate employee compliance concerns. Companies should ensure that the investigative process is fair and impartial. Reporting employees will go outside of the company if they believe the investigative process is not fair. Do not promise the reporting employee a specific outcome. Instead, assure the employee that the matter will be thoroughly looked into. 14 7

8 Document all steps of the investigation. Use a neutral third party to investigate serious claims. This can include retaining outside counsel. Consider the benefit of conducting the investigation under attorney client privilege. 15 Once an employee has reported a compliance deficiency, a company may want to consider whether to enter into a written agreement with the employee concerning his or her continued employment. Agreement can address potential issues between employer and employee. Be careful!!! Recent SEC cases disfavored such agreements and protected relators. Public policy concerns. 16 8

9 Topics in such an agreement might include: employee's continued dedication to their duties for the company; protection of company and patient information from improper disclosure and confiscation by the employee; and employee's cooperation with the company's internal investigation. Legal counsel should assist in preparing these agreements and counsel on the advisability in a particular situation. 17 A company should continuously evaluate its policies related to compliance reporting, non-retaliation and investigations to ensure they are effective. Allow employees to provide feedback on the company's policies through multiple methods, including anonymous methods and through informal discussions. Ensure that management is responding appropriately to all reported concerns. This includes assessing whether employees are not reporting compliance issues for fear of raising "bad news" with management or retaliation use employee surveys, exit interviews, informal discussions, annual reviews 18 9

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