On December 16, whistleblower advocacy organizations National Whistleblower Center (NWC) and Government Accountability Project (GAP) held a live discussion on Twitter about recent tweets Elon Musk made mocking whistleblowers. During the event, Tesla whistleblower Cristina Balan joined the conversation and spoke to her experiences of whistleblower retaliation at the company.
“Blow the whistle on Tesla!” CEO Musk urged his Twitter followers on November 30, linking to a “Cyberwhistle” product. He followed up with a second tweet stating: “Don’t waste your money on that silly Apple Cloth, buy our whistle instead!”
A few days later, news broke that the U.S. Securities and Exchange Commission (SEC) is investigating a Tesla whistleblower’s allegations of misconduct at the company. According to previous WNN reporting, whistleblower Steven Henkes, a former field quality manager at Tesla, filed his disclosure to the SEC in 2019 and “alleges that Tesla failed to properly disclose to shareholders and the public fire risks associated with solar panel system defects.” Henkes also alleges that Tesla “did not warn consumers of defective electrical connectors that could lead to fires.”
Whistleblower advocates argue that Musk’s mocking of whistleblowers sends a chilling message to would-be whistleblowers. In the live discussion, NWC Executive Director Siri Nelson spoke with GAP Legal Director Tom Devine about how Musk’s actions send a strong anti-whistleblower message. Nelson and Devine discussed whistleblower retaliation as a whole, current legislation, and the path forward for individuals who are thinking about blowing the whistle.
Devine and Nelson began the conversation by discussing the FTC Whistleblower Act of 2021, which Nelson said “would create a whistleblower program for the FTC,” the agency partly responsible for “a lot of the regulations that would apply to Tesla.” Devine praised the bill, which stemmed from Facebook whistleblower Frances Haugen’s disclosures. He explained how the bill has reward provisions as well as anti-retaliation provisions for whistleblowers.
Nelson talked about how she was upset to see that Musk’s Cyberwhistle product sold out and further discouraged to see Musk named as TIME’s Person of the Year, describing the decision as “mind-boggling.”
“Mr. Musk needs to grow up,” Devine said. He talked about studies that have shown whistleblowers are a “significant resource for private sector organizations” like Tesla. Nelson agreed, saying that Musk should recognize the values whistleblowers bring to companies. They talked about the aforementioned Tesla whistleblower allegations to the SEC, and Nelson noted that given Musk and Tesla’s notoriety in the field, “It’s so important for millennials and Gen Z-ers to understand their rights.”
On the challenges facing the whistleblower rights movement in the coming year, Devine mentioned the importance of protecting civil service employees in the government and modernizing other whistleblower protection laws for federal employees and members of the intelligence community. Although whistleblowers should be viewed as a resource, Devine says to many, they are still viewed as threats. “They should be safe when they try to protect their employer,” remarked Devine.
“If you’re striving for excellence, why are you shutting down the main people inside your company who are the control system, who are the ones who are going to make sure that you actually are able to reach that excellence?” questioned Nelson.
Devine and Nelson also talked about how whistleblower laws in the U.S. influence those in the rest of the world. Devine illustrated how whistleblower legislation in the U.S. is lacking, stating: “We need to have whistleblower laws that cover civil liability, criminal liability, threats to property, threats of violence against whistleblowers, not just people getting harassed on the job.”
During the discussion, Tesla whistleblower Christina Balan spoke about gender discrimination and retaliation at the company that she says has happened to not only her but to “many, many engineers.” Balan said she worked at Tesla from 2010 to 2014: according to an article in the LA Times, she worked as an engineer and was brought on to “help design the battery pack for the now-iconic Model S all-electric luxury sedan.”
Balan talked about being forced to sign the mandatory arbitration agreement when joining the company. This arbitration agreement was mentioned in court filings of six Tesla whistleblowers who are bringing lawsuits alleging that there is a culture of sexual harassment at the company, The Washington Post reported on December 14.
Balan talks about how Tesla has tried to publicly defame her after she called attention to safety issues with floor mats used in the Model S car, efforts the LA Times article details. She says that she was then forced to go into a second arbitration with Tesla, allowing the retaliation against her to continue.
“Right now, I am in contact with another three people from Tesla, they are struggling to stop other serious safety issues. But they’re afraid, looking at my story,” Balan said in the event, stating that the individuals she is contacting fear that they will be subjected to the same treatment she has had to endure. Balan also spoke to the chilling effect the culture at Tesla cultivates and talked about how lots of gender and race-based discrimination jokes allegedly came from Musk himself.
“What is our solution for future whistleblowers at Tesla?” Balan asked. “What is our safe room…for us to prove what’s happening in real life in Tesla?”
Nelson praised Balan for coming forward with her story and condemned these types of agreements that have a chilling effect. She stated that some of these kinds of agreements could even be considered illegal if a court could access and read them over. Devine also thanked Balan for talking about her experiences and delved into the provisions in the Sarbanes-Oxley Act and its relevance to non-disclosure agreements.
“My story, I think, will show even more the vindictiveness of Musk and his goons and PRs and legal, you know, army he has because in my case, they went after me four years after I left Tesla to give an example to all the people who dared to speak up,” Balan said. “People are scared to speak up.” She concluded, “It’s not just about me. It’s about an entire team for years.”
Nelson and Devine then talked about things potential whistleblowers should have in mind when facing the decision to blow the whistle. “First, they should do their homework,” Devine said, referencing survival guides for whistleblowers and other resources out there for whistleblowers. “Things will never be the same after you blow the whistle…you really need to be prepared.”
Devine advised that potential whistleblowers should consult with family before making such a big decision.” Additionally, he said that individuals “should go to veterans of this territory” and gain insights from other whistleblowers’ stories. “You have to be fully informed about what you’re getting into, so that you make a commitment you can stick with,” Devine said, warning listeners about the gravity of going up against large institutions and organizations.
Once someone blows the whistle, Devine advises that individuals ensure they have support from coworkers, gauging where they stand on the issue at hand. “Find out if you’ve got solidarity…you can’t win if you’re isolated,” he said. Solidarity, he mentioned, among coworkers as well as stakeholders who are being undermined or endangered by the possible misconduct.
Devine advised whistleblowers to carefully gather evidence. “You need to talk to a lawyer,” he emphasized. Nelson echoes that sentiment by encouraging potential whistleblowers to visit National Whistleblower Legal Defense and Education Fund’s intake form, which is linked on NWC’s website.
“Anyone could be a whistleblower,” Nelson said. “You can’t predict when you’re going to encounter wrongdoing, but you can be prepared mentally and emotionally for considering the idea that you may encounter wrongdoing and you may want to speak up about it.”