What if my employer asks me to do something illegal?

Being asked to do something illegal by your supervisor can be a stressful and confusing situation. You are torn between following orders and possibly going to jail. Remember when ex Donald Trump lawyer Jenna Ellis plead guilty several years ago to making false statements about election fraud in the 2020 presidential election?

It was alleged that she attended a meeting with Georgia lawmakers where Trump personal lawyer and former New York Mayor Rudy Guiliani and she both made false claims about voting irregularities including that fraudulent mail-in ballots were counted, that thousands of felons illegally voted, that more than 60,000 underage people illegally registered to vote, and that more than 10,000 dead people voted in Georgia, among other claims.

In her statement to the court, Ms. Ellis claimed she relied on more experienced lawyers to provide her facts about the alleged election fraud and stated: “I failed to do my due diligence.”

What should an employee do if your employer asked you to do something illegal? The easy answer is this: just say no. “Doing what I was told” is not a defense. Of course, it is not that easy when an employee does not want to lose their job. As Ms. Ellis found out the hard way, however, the trouble is that when the illegal action is uncovered, you could go to jail. Is any job worth going to jail over even if saying “no” means committing career suicide?

What steps should you take in these circumstances? Unlike Ms. Ellis, do your due diligence. Don’t just comply with the “because I said so” standard.

First step: get the claimed illegal order in writing. Employees who report illegal employer activities are deemed whistleblowers. When an employee reports illegal activity, there are laws protecting them from retaliation from their employer. A written order is “Exhibit A.” Examples of protected acts include reporting environmental hazards, accounting fraud, financial misconduct, and safety or other employment law violations. The law often provides different ways to report illegal conduct, whether internally or externally. It is important that an employee know which law may apply and how to best report it.

Consider first discussing the situation with your supervisor. It is good practice to assume that your supervisor is unaware that what they have asked you to do is illegal. Ask questions about what laws may apply and how they may be broken by the ordered actions. Do so courteously and seek to be collaborative rather than adversarial. Another strategy is to ask for the reasoning behind the task. It’s possible that the dialogue might change the situation.

If you cannot discuss the situation with your supervisor, or they “double down” then speak with another supervisor, Human Resources, the Chief Financial Officer or even the company’s internal or external attorneys. Their jobs are to protect the company, not an individual supervisor.

On the other hand, it may be preferrable to talk first to your own lawyer before approaching HR or your supervisor to obtain some good common sense/legal advice. Hiring a skilled employment attorney should provide you with legal advice on how to proceed. Frankly, in my experience it is almost guaranteed that the employee will not keep this particular job under the circumstances. The workplace will become too awkward. But, with those legal protections if employees engage in specific types of protected activities, you may be able to exit the situation with a cushion.

As Ms. Ellis found out, agreeing to a task that is illegal could ruin your career or place you in jail. If you are unable to dissuade your employer and need to firmly say no to the task, begin documenting the circumstances to provide to your attorney.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com