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It is hard to count the number of codes of ethics/compliance we have read or written. A key topic for almost every code is encouraging employees to report perceived wrong doing. So codes contain language to the effect, “If you see something that is wrong, report it immediately. Our organization strictly prohibits retaliation against those who reports potential wrong-doing in good faith.” This is followed by a list of reporting channels. The promise is a fake.
Consider: You are a nurse aid. You know that pre and post op visits for surgery by a leading admitter are usually performed by hospitalists. You also know that the surgeon bills under a global payment code that requires that the surgeon do the pre and post op visits. This strikes you as wrong and you consider reporting it. But will your report be judged to be in good faith? It will be judged by officials far above you in rank and with whom you have had little or no contact. If you are right, they have been enabling fraud and, in effect, buying referrals. Your report may cost the hospital a lot of money, even if the government doesn’t catch on. When your report is evaluated, the surgeon will almost certainly say you are a disgruntled nurse trying to get even. Who is the hospital likely to believe? You or the cash cow?
Employees know this happens. In essence, your non-retaliation language encourages employees to become external whistleblowers – opposite of the intended effect. How do you get around this? Try saying, “If you see something wrong, report it immediately. Our organization strictly prohibits retaliation against those who report compliance concerns. Of course, you are expected to make reports on the basis of an honest desire to prevent wrong doing.”
Why is the stupid “good faith” language so popular? Organizations are concerned that employees will make reports with the intention of causing trouble for others. This happens but not with the torrential effect that worries HR types. And even if someone makes a report in bad faith, retaliation is not the response – it is a discipline matter. Retaliation is always wrong. Period. Lawyers, especially employment attorneys, love the good faith language. But they will not pay the huge costs of having an external whistle blower. You will.
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