Whistleblower Laws: Ig's Verdict And Legal Implications

Whistleblowers are individuals who reveal information about activity within an organization that is deemed illegal, immoral, illicit, unsafe, or fraudulent. In the United States, whistleblowers are protected by law from retaliation for making a protected disclosure. The Inspector General Act, as amended, educates agency employees, contractors, grantees, and personal services contractors about whistleblower protections and their rights and remedies against retaliation for protected disclosure. While the law does not permit the Whistleblower Protection Coordinator to act as a legal representative, whistleblowers can submit a retaliation complaint to the Office of Special Counsel (OSC) or through the OIG Hotline.

However, in a recent case, an unidentified whistleblower fashioned an urgent concern disclosure to the Intelligence Community Inspector General (IC IG). The IC IG found the disclosure credible and satisfied the statute's definition of an urgent concern. However, Acting Director of National Intelligence (DNI) Joseph Maguire withheld the disclosure from Congress, potentially chilling future whistleblowers and damaging the watchdog's efficacy. This decision has raised questions about the independence of the IG and the protection of whistleblowers, with some fearing retaliation and others deciding to share information with the media.

What constitutes a protected disclosure?

A "protected disclosure" is a disclosure of information that an employee, former employee, or applicant for employment reasonably believes evidences wrongdoing. This includes:

• Violation of any law, rule, or regulation
• Gross mismanagement
• Gross waste of funds
• Abuse of authority
• Substantial and specific danger to public health or safety

Protected disclosures are covered by whistleblower protections, regardless of whether they are made to the OIG, the OSC, a supervisor or someone higher up in management, or a member of Congress or a congressional committee. However, the disclosure must not be specifically prohibited by law and the information must not be kept secret in the interest of national defense or the conduct of foreign affairs.

In the context of federal contracts or grants, protected disclosures include:

• Gross mismanagement of a Federal contract or grant
• Abuse of authority relating to a Federal contract or grant
• Substantial and specific danger to public health or safety
• Violation of law, rule, or regulation related to a Federal contract or grant

Protected disclosures can be made to the following entities:

• Members of Congress or representatives of congressional committees
• Inspectors General
• The Government Accountability Office
• Federal employees responsible for contract or grant oversight or management
• Authorized officials of the Department of Justice or other law enforcement agencies
• Courts or grand juries
• Management officials or other employees of the contractor, subcontractor, or grantee who have the responsibility to investigate, discover, or address misconduct

It is important to note that protected disclosures must be based on a reasonable belief that wrongdoing has occurred and must be made to an authorized person or entity to be protected.

What are the permissible methods of presenting a disclosure?

The permissible methods of presenting a disclosure are dependent on the type of information being disclosed. In general, employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release. If the information is classified or specifically prohibited by law from release, it may only be shared with the Office of the Inspector General (OIG), the Office of Special Counsel (OSC), or a designated agency official.

For example, a disclosure of waste, fraud, or abuse that includes classified information is not a protected disclosure under the whistleblower laws unless the disclosure is made in accordance with the law and rules that govern the proper handling and transmission of classified information. For instance, disclosing classified information to an unauthorized recipient, even if you reasonably believe the information is evidence of waste, fraud, or abuse, is not a protected disclosure.

What are the rights and remedies against retaliation for protected disclosures?

Rights and remedies against retaliation for protected disclosures are outlined in the Whistleblower Protection Act (WPA) and enforced by the Whistleblower Protection Coordinator. The WPA ensures that employees who engage in protected disclosures are free from fear of reprisal for their disclosures. Retaliation is defined as the taking, failing to take, or threatening to take a personnel action because of an employee's protected disclosure or activity.

Employees who believe they have been retaliated against can submit a retaliation complaint to the U.S. Office of Special Counsel (OSC) or through the OIG Hotline. The OSC has primary jurisdiction over retaliation complaints for most federal employees and can seek a temporary stay of a pending personnel action. Employees may also file a union grievance, if applicable.

In certain instances, an employee who has experienced retaliation may file an appeal directly with the Merit Systems Protection Board (MSPB). Personnel actions that are directly appealable to the MSPB include adverse actions, retirement appeals, performance-based removals or reductions in grade, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration of employment rights.

If a DHS OIG investigation substantiates a claim of whistleblower retaliation, relief or remedies may be available, including job restoration, reversal of suspensions and other adverse actions, back pay, and/or reasonable and foreseeable consequential damages.

It is important to note that the Whistleblower Protection Coordinator is not permitted to act as a legal representative, agent, or advocate for current or former employees. Employees seeking legal representation or advice should consult with an attorney or legal services organization.

What are the consequences of retaliation for employers?

In the United States, whistleblowers are protected from retaliation for disclosing information that they reasonably believe provides evidence of a violation of any law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. Retaliation against whistleblowers is illegal and can result in serious consequences for employers.

The consequences of retaliation for employers can be significant and far-reaching. Firstly, employers who retaliate against whistleblowers may face legal consequences, including fines, penalties, and lawsuits. Whistleblowers who have been retaliated against may file complaints with the Occupational Safety and Health Administration (OSHA) or seek legal recourse through the courts. Employers found to have engaged in retaliation may be subject to financial penalties, damages, and even criminal charges in some cases.

Secondly, retaliation can damage the reputation of the employer and lead to negative publicity. Whistleblowers who have been retaliated against may speak out publicly, damaging the organization's public image and eroding trust with stakeholders, customers, and the general public. This can result in lost business opportunities, decreased brand value, and a decline in public trust.

Thirdly, retaliation can have a detrimental impact on employee morale and retention. When employers retaliate against whistleblowers, it creates a culture of fear and intimidation within the organization. Employees may become less likely to report misconduct or unethical behavior out of fear of retaliation, leading to a decline in overall employee morale and engagement. Additionally, employers may struggle to attract and retain top talent as potential employees may be deterred by a reputation for retaliating against whistleblowers.

Furthermore, retaliation can also lead to operational disruptions and decreased productivity. Employers may find themselves distracted by legal proceedings, investigations, and negative media attention. This can take a toll on the organization's ability to conduct business as usual, impacting productivity and operational efficiency.

Finally, retaliation can result in financial costs for employers beyond any legal penalties. Employers may need to allocate resources to conduct internal investigations, hire legal counsel, and implement corrective actions to address the issues raised by the whistleblower. Additionally, employers may face increased employee turnover and the associated costs of recruiting and training new staff.

In summary, the consequences of retaliation for employers can be severe and have long-lasting impacts on the organization's reputation, employee morale, operations, and finances. To avoid these consequences, employers must ensure they have robust whistleblower protection policies in place and foster a culture that encourages the reporting of misconduct without fear of retaliation.

What are the psychological impacts of whistleblowing?

Whistleblowing can have a significant psychological impact on individuals, and the experience is often isolating and stressful, especially when whistleblowers face retaliation. The act of whistleblowing represents a trade-off between fairness and loyalty, and this ethical dilemma can take a toll on mental health and emotional well-being. Whistleblowers often experience symptoms of stress, anxiety, and trauma, which can lead to more severe issues such as depression and post-traumatic stress disorder (PTSD).

The pressure and scrutiny from government agencies, the media, and the public, as well as social isolation and ostracism from peers and colleagues, can be intense. The fear of retaliation, reprisal, and personal harm are common sources of anxiety for whistleblowers. The uncertainty and instability of whistleblowing can also trigger or exacerbate existing mental health issues.

In addition to the emotional and psychological challenges, whistleblowing can have profound personal consequences. Whistleblowers may experience loss of employment, damage to reputation, financial hardship, social ostracism, and strained relationships. They may also face legal prosecution and criminal charges, particularly in cases involving classified information related to national security.

The experience of whistleblowing can challenge an individual's sense of identity, purpose, and belonging, especially if they are deeply committed to serving their country or organisation. Reconciling their sense of identity as truth-tellers with negative perceptions and portrayals in the media and society can be difficult.

Furthermore, whistleblowing can impact career trajectories and professional growth. Whistleblowers may face blacklisting, blackballing, and professional retaliation within their industry, limiting their employment opportunities and advancement. They may also be barred from certain fields, such as government or national security, and experience difficulties obtaining security clearances or passing background checks.

To mitigate the psychological impacts of whistleblowing, individuals should seek support, develop positive coping mechanisms, and build a strong support network. It is crucial for policymakers and civil society organisations to recognise the toll of whistleblowing and provide whistleblowers with the necessary resources and protections.

Frequently asked questions