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“More than 80 percent of whistleblowers disclosed wrongdoing internally prior to blowing the whistle to the SEC.” Corporate America still has a long way to go, adds attorney Stephen Kohn. “Culturally, corporate America has not adjusted to the laws that have been enhanced and clarified to encourage whistleblowers to come forward,” Kohn says. “Most employers still hate whistleblowers, period…. The culture has not changed, but it will.”

LESSONS FOR EMPLOYERS Often it’s the worst-case scenarios that lead to changes in policy. The Enron and Tyco International accounting scandals in 2001 and 2002 had a major impact on how companies now write policy covering whistleblowers, adds Meg Campbell, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. “Companies that weren’t doing— or were maybe only paying lip service—began a more robust approach to maintain a culture of compliance, where employees are expected to report wrongdoing and would without fear of retaliation,”

Campbell says. Transparency is key in creating an effective system of compliance, says Kelly Frey, an attorney in the corporate law division at Frost Brown Todd. “If your employees don’t see the process as transparent, or see that complaints disappear into a black hole, they will stop reporting and will go directly to the SEC,” Frey says. Employees need to know “that if a fraud complaint is filed internally, the firm will begin to investigate right away and issue appropriate discipline in a timely manner.” Confidentiality agreements to protect trade secrets and confidential business information can still be written, says Campbell, but they need to be carefully drafted and tailored to its purpose. Agreements can state that the employee should maintain | 1 3

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