Sunday Read: Elon Musk’s Shameful Attempt to Bully Whistleblowers

UPDATE: Today, less than a week after Musk’s tweets, Reuters reports that the SEC is probing Tesla over whistleblower claims on solar panel defects.

On November 30th, Tesla CEO, Elon Musk posted a tweet depicting a Tesla branded metal whistle and saying, “Blow the whistle on Tesla!” This tweet was met with widespread criticism in light of the string of whistleblower suits brought against the company in recent years. While the kneejerk reaction to Musk’s tweet — as an attack on whistleblowers — sprouted discussion, NWC’s Executive Director penned an op-ed about how tweets and indirect mockery like Musk’s can be viewed as whistleblower retaliation. Here we provide more information about whistleblower retaliation and anti-retaliation protections.

The underlying purpose of whistleblower protection laws is to allow employees to stop, report, or testify about employer actions that are illegal, unhealthy, or violate specific public policies. The best way to stop retaliation is to prevent it from happening. Unfortunately, most whistleblowers will face some form of retaliation from their employers, peers, and colleagues after they blow the whistle. Yet, whistleblower retaliation does not always take the same form. Retaliation can range from outright termination of contract, forced relocation, pay deductions, social ostracism, and more.

The following elements are the basic components of most whistleblower protection claims:

• That the plaintiff is an employee or person covered under the specific statute or common law that the action is based on;
• That the defendant is an employer or person covered under the specific statute or common law that the action is based on;
• That the plaintiff engaged in protected whistleblower activity;
• That the defendant knew or had reason to believe that the plaintiff engaged in such activity;
• That retaliation against the employee was motivated, at least in part, by the employee’s engaging in protected activity;
• That plaintiff was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions or privileges or employment; or suffered some other wrong actionable under state tort or contract theory;
• That the plaintiff can demonstrate, by a preponderance of the evidence, that he or she would not have been subject to an adverse action in the absence of their protected whistleblower conduct.

One of the most hotly contested issues in whistleblower law is the exact definition of protected whistleblower activity. Some states have very broad definitions while others limit what constitutes protected activity. An employee should consult with an experienced whistleblower attorney to determine the definition for his or her state.

The following general categories of facts or circumstances are used to establish a reasonable inference that the discharge was discriminatory:

• Employer’s hostile attitude toward matter underlying employee’s protected conduct;
• Employer’s knowledge of protected conduct;
• Nature of protected conduct;
• Special conditions of employment following protected conduct and leading up to discharge;
• Disparate treatment of discharged employee prior to protected conduct;
• Previous expressions of satisfaction with work record;
• Disparate treatment of similarly situated employees;
• Termination procedure;
• Timing of discharge;
• Threats or retaliation against other employees for similar conduct.

Other factors that have been used successfully to establish circumstantial evidence of discriminatory motive are:

• High work performance ratings prior to engaging in protected activity, and low ratings or “problems” thereafter;
• Manner in which the employee was informed of his or her transfer or termination;
• Inadequate investigation of the charge against the employee;
• Discipline, transfer, or termination shortly after employee engaged in protected activity;
• The magnitude of the alleged offense;
• Absence of previous complaints against employee;
• Differences in the way complainant and other employees were treated;
• Determination that the employee was not guilty of violating work rule charged under;
• Charges of “disloyalty” against an employee for engaging in protected activity.

According to a study from Bradley University professors, Dr. Tanya Marcum and Dr. Jacob Young, published in the DePaul Business & Commercial Law Journal, nearly two thirds of whistleblowers had experienced the following forms of retaliation: 69% lost their jobs or were forced to retire; 64% received negative employment performance evaluations; 68% had work more closely monitored by supervisors; 69% were criticized or ostracized by coworkers; and 64% were blacklisted form getting another job in their field.

Whistleblower stories are rife with these unfair retaliatory actions. Almost every whistleblower has a similar story. Many are blindsided as they believed their superiors would correct the oversight, or not punish them for speaking out. Before coming forward, whistleblowers must weigh the inherent risk of exposing fraud.

Look at the case of NWC Whistleblower Leadership Council Chairwoman and FBI whistleblower, Jane Turner, who blew the whistle on a gross oversight within the FBI. In retaliation for exposing FBI failures, Turner was removed from her position and transferred to an office without a desk or a chair. She was subjected to fitness for duty reviews while coworkers were instructed to avoid and ignore her. Eventually, she was removed from service for an entire year.

Whistleblower retaliation is a serious issue, and when CEO’s facing whistleblower claims mock whistleblowers this may constitute retaliation. No one should have to fear being publicly ostracized after blowing the whistle, and NWC has been fighting for strong whistleblower retaliation laws and robust enforcement of these laws for over a decade.