Employee Fights against Unlawful activities of Employer

An interesting legal suit is being fought in US which has implications for any honest employee who is in a dilemma when he/she observes that the organization in which he/she works is engaged in unlawful activities or trying to cover up its mistakes for the fear of legal repraisals. (Refer details here)

This is the case of Barbara Peterson, an ex-employee of Woodwinds Hospital in Woodbury.  She was working as a “Patient Advocate” at Woodwinds and alleges that she was ordered to destroy notes and e-mails about incidents that could damage the hospital’s reputation. She instead carried the records home and preserved them as “Evidence” for the negligence of the Hospital in certain issues. She later had resigned from the job as well.

As a “Patient Advocate”, Barbara was responsible  for liasoning between the medical staff and patients and to investigate grievances. According to her version she was asked by her supervisor to clean up the grievance files before an impending accreditation audit and removing of records which showed the hospital in bad light. Though distraught, she removed about 233 pages of information from the hospital records but preserved them under her custody at home. After leaving the hospital she went through a bout of depression and later filed a case against the hospital for infliction of emotional distress and violation of her employee rights.The hospital however denies having instructed Barbara to clean up the records which if proven would be a fraud.

The case is of relevance to many ethical employees who face a dilemma when they observe illegal activities in their employer’s business and feel an obligation to the society to divulge the same. At the same time, “Employee Ethics” , “Privacy Regulations” as well as fear of losing the job etc make it difficult for them to turn into whistle blowers. In the process they may undergo stress and consequential problems.

In most such cases one can envisage a legal fight later between the employee and the employer in which all the evidence related to the incident will be only with the employer and the employee will be left to defend himself/herself against a powerful adversary without proper evidential background.

This case represents one such situation where the employee either in anticipation of such developments or more appropriately in this case faced with the guilt of doing a wrong thing, keeps the information that is considered necessary for his/her self-preservation and presents it as “Evidence” in a court of law. While the act of taking away the property of the employer without authority may be incorrect and punishable under law in normal circumstances,  the “Intention” of such act and “How it is used” on a later day determines whether the act was done for “Self Defense”  or for “Inflicting malicious damage on the employer” or for making a “Wrongful gain”. If it is proved that there was in deed a prima facie  case to believe that an irregularity was indeed being committed by the employer, then his/her conduct becomes more of a “Potential Whistle Blower”.

If any irregularity is proved, then there is a case for even rewarding the employee for his/her sense of commitment to the society which cannot be subordinated to the commercial interests involved in an employment. Any person who is not compliant with law can claim protection under excuses of “Employee Ethics”.

The above case also has relevance to “Company Secretaries” and “Independent Directors” who often come to possess confidential company information that may indicate illegal activities by the employer. In all such cases such Company Secretary or an Independent Director would have to decide whether his duty to the investor should rank higher than his loyalty to the employer.

The debate in this case may also contribute to discussions  on the Wikileaks issue.

Perhaps the Corporate Circles need to debate on this issue.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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