Whistleblowers need to be brave, but if you work at a company like Braskem, becoming a whistleblower could be easier and more rewarding than you think. This is because Braskem is regulated by the United States Securities and Exchange Commission (SEC), which means that employees of Braskem are able to participate in the SEC whistleblower rewards program. The SEC whistleblower rewards program allows employees to report legal violations at Braskem to the SEC anonymously, and, if the SEC uses your information to obtain a fine against Braskem, you can claim a cash reward for being the whistleblower. The average reward paid by the SEC is ~$5 million dollars.
If you’ve witnessed bribery, corruption or any compliance violation the chances are that you may be considering using the Braskem ethics hotline or whistleblower hotline. Many people chose to report violations internally, but here are five things you should consider before doing that:
- Figure out if you’ve witnessed a ‘securities law’ violation
- Preserve evidence of the violation
- Speak to an independent lawyer (for free)
- Consider reporting to the SEC
- Consider reporting directly to the company
In this article we’ll walk you through each of these steps, and explain why they are important to consider. But first, a little background on the company.
Braskem was created when six companies merged to create the largest petrochemical company in the Americas. It is a top producer of thermoplastic resin and biopolymers that are used in many different industries, including housing, transportation and food. The company produces polyethylene from ethanol made from sugarcane, and this, along with its other chemical products, is often sold to other companies for use. It has plants across the world that produce millions of tons of petrochemicals each year. The company has stock traded in the United States on the NYSE and is regulated by the SEC.
Braskem encourages employees to speak up in its corporate governance materials and has a Code of Conduct (available here) that details the company’s integrity efforts, internal controls and core business principals, which include:
- Doing business ethically and with integrity;
- Participating effectively to strengthen the organizational culture;
- Having zero tolerance for corruption in any form;
- Never using cultural conditions to justify wrongdoing;
- Operating transparently by disclosing accurate and accessible information; and
- Acting in a fair and ethical way in public and private relationships.
Notwithstanding this, Braskem has had its share of legal troubles for non-compliance with United States laws. Most recently, the company reached a settlement with the SEC and U.S. Department of Justice for violations of the Foreign Corrupt Practices Act (FCPA). The complaint against Braskem alleged that the company attempted to hide millions of dollars in bribes made to Brazilian officials, and it agreed to pay fines totaling $957 million.
If you’ve witnessed conduct that you believe violated the FCPA or the company’s Code of Business Ethics, you should consider the following steps before making a complaint internally.
Figure Out If You Witnessed a Securities Violation
The first step in becoming a whistleblower is determining where to report. Whistleblowers who have witnessed a “securities law violation” get preferential treatment under U.S. law that allows them to report these violations anonymously to the SEC and obtain legal protection from retaliation. In certain circumstances, the whistleblower can also obtain a whistleblower reward.
Securities law violations typically occur when a company engages in some form of fraud, and common examples include:
- Violations of the Foreign Corrupt Practices Act (FCPA);
- Bribery or corruption;
- Insider trading;
- Accounting fraud;
- Investor fraud;
- Failure to keep accurate books and records;
- Serious breach of internal controls;
- Serious corporate governance failures; and
- Revenue manipulation.
If you have information about any of the above, you may have witnessed a securities law violation which means you may be eligible for the SEC’s whistleblower rewards program. This applies even if the violation was committed by contractors, suppliers, consultants, sales agents or other third parties in the supply chain. This is something you should discuss with an independent lawyer (not the company’s legal department) and we will explain below how you can usually do that for free.
The SEC receives about 20,000 tips, referrals and complaints each year and it simply cannot investigate all of them. As a result, it’s important for whistleblowers to give the SEC as much evidence as they can when making a submission. Having evidence of the allegation preserved or knowing where evidence can be found is critical to ensuring that the person investigating the wrongdoing can verify your complaint. Some witnesses think that because they already reported the violation to the company that all evidence will be preserved. This is not the case and employees should never rely on the company to preserve evidence of wrongdoing.
Importantly, taking or copying company documents can breach your employment agreement. This is why it is important that any document collection is done with the advice of an experienced whistleblower attorney. As we explain below, this is usually something you can get for free.
Talk To A Lawyer (For Free)
If you are thinking of becoming a whistleblower it’s critical that you speak to an experienced whistleblower attorney. Not only is this easy to do, but it’s usually free. For example, the award-winning team at FTI Law have international experience representing whistleblowers. Their team offer free consultations to whistleblowers, represent clients all over the world and they will help figure out what your options are and guide you through the whistleblower process. In addition, FTI Law also provides a free online evaluation for whistleblowers who want to get an idea of the strength of their case.
Even if you’re not interested in reporting to the SEC, it’s important that you speak to a lawyer so have enough information to make an informed decision about where to report. Reporting in the wrong way or to the wrong person can affect your legal right to be protected from retaliation, your ability to bring a lawsuit against the company and your ability to claim a whistleblower reward. An experienced whistleblower attorney can show you the correct procedure for reporting, and ensure you set yourself up for success when you do. Given that consultations are provided for free and covered by the attorney-client privilege, there is virtually no downside to speaking with a lawyer. We recommend contacting one here or taking FTI Law’s award-winning online whistleblower evaluation.
Consider Reporting to the SEC
Once you have spoken to a lawyer you should have a good idea of the benefits of reporting to the SEC. These include:
- The ability to report violations anonymously;
- You can gain protection against retaliation from your employer under US law; and
- You can become eligible for an SEC whistleblower reward, the average of which is ~$5 million.
When it comes to becoming a whistleblower, there are special rules if you are a lawyer, director, officer or work in the compliance or audit team at your company. However, most employees will qualify for the SEC whistleblower reward program provided they can provide “original information” about a securities law violation. In fact, the SEC whistleblower rewards program is not limited to employees, it is also open to people who work as contractors, consultants, sales agents, suppliers or other third parties in the supply chain.
The decision to report to the SEC should be made in consultation and with the guidance of your lawyer. If you’re not ready to speak to a lawyer you can start by taking this free online evaluation to check your eligibility for the SEC whistleblower rewards program.
Consider Reporting Internally
Companies often have an ethics hotline, compliance hotline or other reporting channel that allows employees to report concerns directly to the company. In addition, companies often allow employees to report directly to management, the audit committee, the human resource department, chief financial officer (CFO), chief operating officer or even the chief executive officer (CEO). For example, there is a Braskem whistleblower hotline (more information here) where employees, suppliers and contractors can report ethical concerns such as:
- corporate governance issues;
- bribery and corruption;
- internal controls issues; and
- violations of the false claims act and other violations of company policy.
In addition, Braskem also recommends reporting concerns internally. However, reporting integrity violations internally can be a precarious move. Not only can it negatively affect your legal rights when it comes to protection from retaliation, it could also expose you to harassment. Harassment of whistleblowers is not an uncommon business practice at large corporations and it’s important to engage in risk management when becoming a whistleblower to minimize the chances of retaliation. This is especially true if your complaint involves an allegation against the integrity of a senior employee such as a director, vice president, executive vice president or officer of the company.
One of the most important things that you can do to reduce the risk of retaliation is to maintain your anonymity. Staying anonymous when reporting and during any investigations is harder than it sounds. This is why you should speak to a lawyer to make sure you don’t accidentally reveal your identity when making a compliance report through a company’s ethics hotline. There are many documented cases of companies who retaliated against whistleblowers, as a result, we always recommend that employees speak to qualified legal counsel before reporting internally. This is especially true if the legal violations include bribery, corruption or violations of the FCPA, which can result in criminal investigations by law enforcement agencies such as the United States Department of Justice.