Increasing Levels Of Workplace Retaliation Reported In National Survey

The 2011 National Business Ethics Survey® was published last week by the Ethics Resource Center. Over the last two decades this biannual report has become a mainstay for tracking trends, assessing data and gathering research on the state of ethics in the American workplace. It has also served as an effective gauge for monitoring hot-button issues in the employment law field. This year's survey continues that trend.

The Survey, which asked nearly 4,700 U.S. employees about the culture of their workplaces, presented a mixed bag of ethical findings. The good news:

The overall percentage of observed ethical misconduct went down (45% of respondents stated they had witnessed misconduct in 2011, compared to 49% in 2009 and 55% in 2007). The percentage of employees who reported ethical misconduct that they witnessed increased to a record high of 65%. Employees working for organizations that have implemented effective ethics and compliance programs feel less pressure to compromise standards, see less misconduct, report misconduct more frequently, and are not as likely to suffer retaliation for reporting. However, other data reflect ominous trends that may portend a gathering storm of liability exposure in the employment context. Among negative indicators outlined in the report:

Retaliation against employee whistleblowers rose sharply. More than one in five employees (22%) who reported misconduct say they experienced some form of retaliation in return, up from 15% in 2009 and only 12% in 2007. The percentage of employees who perceived pressure to compromise standards in order to do their jobs rose from 8% to 13%. 34% of employees said their managers do not display ethical behavior, up from 24% in 2009. These are alarming statistics, when viewed in light of the recent expansion of whistleblower protections afforded through such legislation as the Dodd–Frank Wall Street Reform and Consumer Protection Act (providing monetary awards for whistleblowers who provide incriminating information to the Securities and Exchange Commission (SEC) or Commodity Futures Trading Commission (CFTC)) and U.S. Supreme Court decisions such as Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) (whistleblower protection provided to third party considered to be within the "zone of interests" sought to be protected by Title VII). Indeed, the variety of ways in which the NBES respondents perceived retaliation reads like a top ten list of conduct that gives rise to...