There has been much ink, real and digital, spilled on speculating about how the U.S. Securities and Exchange Commission’s (SEC) whistleblower program may affect companies’ internal compliance programs and the volume of external reporting. A recent survey by a law firm that represents whistleblowers reports data that, while giving cause for concern, also gives companies some insights into what issues they should focus on addressing in their internal compliance programs.

Since Dodd-Frank specified sizable bounties for whistleblowing where the whistleblower gives original information to the SEC, the incentive to bypass a company’s internal compliance process is incredibly strong.  Companies are worried that in the whistleblowers’ “race to the government” their carefully-designed internal programs will be rendered much less effective than they were designed to be-injuring the companies’ ability to achieve compliance, conduct effective investigations, address problems, and decide whether to self-report. Additionally, companies are anticipating a significant increase in the number of whistleblower claims of all types.

The Lubaton Sucharow “2012 Ethics and Action Survey” provides some insight into the attitudes of the 1,015 workers surveyed, with the following take-aways highlighted by the plaintiffs’ firm:

  • More than half of the respondents have information that would form the basis for a report of wrongdoing;
  • 89% of respondents said that they would report misconduct, with women slightly more likely to do so, and younger employees significantly more likely to report than older employees;


  • 72% of all respondents, and 88% of young respondents, were unaware of the SEC whistleblower incentive program.

As heartening as these results are to the plaintiffs’ bar, they actually give employers some very helpful insights as well, beginning with perhaps the most important survey result: 84% of respondents have a positive perception of whistleblowers. This key result figures significantly in the importance of a company’s culture of compliance-“embracing the whistleblower.”

If the results support, as they appear to, that employees will give the information they know if they know how to do it and feel safe from retaliation, employers that have accessible, well-communicated, and robust compliance programs that protect and recognize favorably those employees who report legitimate concerns can move proactively to fill the large (72%) information void and strengthen their internal compliance programs. This is an opportunity not to miss.

If you have questions about best practices for your compliance programs, we would be glad to work with you to determine how best to address your opportunities to improve your culture of compliance.


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Ethics Compliance and Whistleblower Response

Ogletree Deakins provides clients with innovative and business-oriented solutions to compliance issues across every facet of labor and employment law. Our lawyers work with clients to design effective compliance measures, assist in audits and investigations, and defend clients in relation to compliance as well as retaliation claims.

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