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Author: Jeffrey H. Matsuura
In cases involving corporate misconduct, senior management may attempt to blame engineering staff for product or service defects or failures.
In the Volkswagen emission testing scandal, for example, at various times during the company investigation Volkswagen executives suggested that engineering staff were largely responsible for the problem (AP 2015; -Connett 2015). Those claims left the engineers involved vulnerable to termination of employment and legal claims raised by Volkswagen, by government authorities, and by individual consumers harmed by the scandal.
Volkswagen management, in effect, attempted to make company engineers scapegoats for this major corporate scandal. If engineers had created a written record using codes of ethics to document their concerns and objections, that record could have been used to rebut such unfair corporate allegations and to defend themselves from legal liability.
This article is written purely for educational purposes, solely to inform engineering professionals how codes of ethics can help them preserve and express their personal legal rights and reduce their risk of personal legal liability. It is also intended to encourage professional engineering organizations to recognize and consider the defensive use of their codes of ethics as they establish and modify them. If those organizations appreciate the potential defensive value of their codes for their members, they will exercise appropriate care to ensure that the codes provide an effective tool for assisting engineers to protect themselves from liability and to exercise the full range of their legal rights.
Professional engineering societies should consider participating in litigation in which their members appropriately exercise their legal obligation to adhere to the terms of the society’s codes of ethics. By providing expert testimony and filing briefs in support of members, the organizations will both encourage engineers to honor and respect the codes of ethics and enhance the overall beneficial impact and value of those codes.
Keeping a Written Record
If asked or ordered by an employer or client to engage in conduct an engineer believes in good faith to be suspect, the engineer should immediately consult codes of ethics and professional responsibility for the leading professional organizations in his or her engineering field.1 Some codes require an engineer to communicate ethical concerns directly to the employer or client.
If a code bars or discourages the conduct and requires the engineer to communicate ethical concerns to the employer or client, the engineer should express the ethical concerns in writing, specifically referencing the applicable code provisions. Copies of this written expression of concern and code of ethics reference should be provided to the person who ordered the action and to appropriate human resources department staff. The engineer should also retain a copy of the document in his or her off-site personal records. If there has been a mistake or misunderstanding, this action will likely force clarification. If the order stands even after the written expression of concern, then the engineer has begun to establish documentation of both his or her concern and the basis for that concern in the code of ethics.
Written records describing concerns and objections and referencing specific code prohibitions and cautions help the engineer present a defense if claims of insubordination, malicious conduct, or failure to perform are raised by an employer or client. Such records also provide evidence of the engineer’s efforts to obtain “whistleblower” status, and the legal protections associated with that status, if the engineer chooses to raise the concerns with appropriate government authorities.
The federal government and 17 states2 provide protection for individuals qualifying as whistleblowers (NCSL 2010). A whistleblower is an individual who alerts appropriate legal authorities about behavior that the individual reasonably believes to be illegal or fraudulent. In some jurisdictions, whistleblower protections extend to reports of actions that threaten public health, safety, or the environment.
Whistleblowers are generally protected against employment termination and other retaliation or harassment by employers and other employees. Federal whistleblower protections are largely limited to reports of misconduct associated with workplace health and safety and environmental protection, but under some circumstances whistleblowers who report government contracting fraud or misconduct or securities law violations may also qualify for federal whistleblower protection. Some states provide broader whistleblower protection.
Whistleblower protection requires proof that the report of misconduct is based on a reasonable assessment of the circumstances. Written references to engineering codes of ethics can be helpful on this point. If an engineer has clearly expressed his or her concerns within the relevant organization and cited appropriate codes of ethics, and if despite those concerns the organization continues the conduct, the engineer can present this history to the appropriate legal or regulatory authority.
Documentation of a dispute and associated professional concern can help to persuade an authority of the reasonableness of the engineer’s claim, thus facilitating a request for whistleblower status.
Protection from Retaliation
Codes of ethics can help engineers pursue their own legal action against an employer or client if the engineer faces reprisals as a result of expressions of concern or refusal to follow orders. In many states, courts recognize claims of wrongful termination raised by employees against employers, but employees bear the burden of demonstrating that the termination of employment was illegal.
Documentation that the engineer raised reasonable concerns of illegal, fraudulent, or potentially harmful conduct by the employer strengthens the engineer’s case. By demonstrating that the engineer’s actions were motivated by reasonable professional concerns—an argument made more compelling through reference to specific codes of ethics—the engineer presents a stronger case that the termination was retaliatory and not justified by insubordination.
If government authorities, including law enforcement and regulatory agencies, or individual people harmed by a product or service raise legal claims against an individual engineer, the documentation of that engineer’s concerns and objections based on the terms of codes of ethics can enhance the engineer’s defense against personal liability. That documentation can help to transfer liability from the engineer to the employer or client.
Codes of ethics provide important tools to help engineers protect themselves against reprisals and personal legal liability. They also facilitate efforts by engineers to exercise their personal rights in interactions with their employers and clients. Professional engineers should recognize this significant value of the codes and should, in consultation with their personal lawyers, be sure to integrate the code provisions in their daily professional actions.
Professional Society Codes of Ethics (selected list)
American Institute of Chemical Engineers: www.aiche.org/about/code-ethics
American Society of Civil Engineers: www.asce.org/code-of-ethics
American Society for Engineering Education: https://www.asee.org/member-resources/resources/Code_of_ Ethics.pdf
American Society of Mechanical Engineers: www.asme.org/getmedia/9EB36017-FA98-477E-8A73-77BO4B3BD410/ P157_Ethics.aspx
Association for Computing Machinery, Software Engineering: www.acm.org//about/se-code
Institute of Electrical and Electronics Engineers: www.ieee.org/about/ieee_code_of_conduct.pdf
National Society of Professional Engineers: www.nspe.org/resources/ethics/code-ethics
An extensive list of national and international organizations and their codes of ethics is available from the Illinois Institute of Technology (http://ethics.iit.edu/ecodes/ethics-area/10?title_op= word&title=).
AP [Associated Press]. 2015. Volkswagen exec blames rogue engineers for emissions scandal. New York Post, October 8. Available at http://nypost.com/2015/10/08/volkswagen-exec-blames-rogue- engineers-for-emissions-scandal.
Connett D. 2015. Volkswagen emissions scandal: Few rogue engineers are to blame, says VW chief executive. Independent (UK), October 8. Available at www.independent.co.uk/news/business/news/volkswagen- emission s-scandal-few-rogue-engineers-are-to-blame-says- vw-chief-executive-a6687201.html.
NCSL [National Conference of State Legislatures]. 2010. State Whistleblower Laws. Available at www.ncsl.org/research/labor-and-employment/state- whistleblow er-laws.aspx.
1 A list of selected professional societies with posted codes of ethics follows this article.
2 Another 18 states provide whistleblower protection only for state government employees.