Whistleblower Rights: Legal Protections And Implications

Whistleblowers are individuals who expose wrongdoing within an organization, whether public or private. Whistleblowers often face retaliation for their actions, including termination of employment, unreasonable increases in workload, reduction of hours, or bullying. However, there are laws in many countries that aim to protect whistleblowers and regulate their activities. In the United States, the Whistleblower Protection Act of 1989 is a federal law that safeguards federal whistleblowers who work for the government and report possible violations of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. This Act makes it illegal for employers to retaliate against employees for engaging in whistleblowing activities.

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:

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

In the United States, a protected disclosure is a disclosure by a worker of information about relevant wrongdoing that they became aware of in a work-related context. The disclosure must be based on a reasonable belief that wrongdoing has occurred and must be made to a person or entity authorized to receive it.

In Ireland, a protected disclosure is a disclosure of relevant information in a particular way. The information must have come to the attention of the whistleblower in connection with their work, and they must reasonably believe that it shows "relevant wrongdoing".

In the UK, protected disclosures are permitted even if a non-disclosure agreement has been signed between the employer and the former or current employee.

In France, a whistleblower is defined as "an individual who discloses or reports, in a disinterested manner and in good faith, a crime or an offence, a serious and manifest breach of an international commitment duly ratified or approved by France, a unilateral act of an international organization adopted on the basis of such a commitment, of the law or regulations, or a serious threat or harm to general interest, which he or she has become personally aware of."

What are the permissible methods of presenting a disclosure?

Permissible Methods of Presenting a Disclosure

The permissible methods of presenting a disclosure vary depending on the country and sector in which the whistleblower is operating. In the United States, for example, there are laws and organizations in place to protect whistleblowers in both the public and private sectors.

In the public sector, federal employees are protected from retaliation by the Whistleblower Protection Act (WPA) and the First Amendment. Federal employees can make protected disclosures to the Office of Special Counsel (OSC), a supervisor or someone higher up in management, or a member of Congress or congressional committee.

For employees of federal contractors, subcontractors, grantees, subgrantees, and personal services contractors, protected disclosures can be made to:

• A Member of Congress or a representative of a committee of Congress.
• An Inspector General.
• The Government Accountability Office.
• A Federal employee responsible for contract or grant oversight or management at the relevant agency.
• An authorized official of the Department of Justice or other law enforcement agency.
• A court or grand jury.
• A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.

In the private sector, employees can report to someone in a higher position, such as a manager, or to external parties such as their lawyer or the police. There are organizations such as the United States Department of Labor (DOL) and laws such as the Sarbanes-Oxley Act and the United States Federal Sentencing Guidelines for Organizations (FSGO) that offer protection to private-sector whistleblowers.

In addition to these internal and external channels, third-party channels can also be used to create a secure and anonymous reporting mechanism for employees. These third-party services are often integrated with specialized case management software to inform the relevant people at the top of the organizational pyramid.

It is important to note that the permissible methods of presenting a disclosure may differ based on the specific laws and regulations in each country or sector.

What are the rights of whistleblowers?

Whistleblowers are individuals who expose any kind of information or activity that is deemed illegal, unethical, or improper within an organization, be it private or public. Whistleblowers often face retaliation for their disclosure, including termination of employment, unreasonable increases in workload, reduction of hours, and bullying. As such, many countries have laws in place to protect the rights of whistleblowers. Here are some of the rights afforded to whistleblowers:

Legal Rights and Protections

In many countries, whistleblowers are granted certain legal rights and protections to encourage them to come forward and protect them from retaliation. For example, in Australia, the Corporations Act 2001 provides legal rights and protections for whistleblowers, allowing them to access these rights from the moment they report misconduct. Similarly, in the United States, the Whistleblower Protection Act, enacted in 1989, protects federal employees who disclose "Government illegality, waste, and corruption" from adverse employment actions.

Freedom of Speech

Whistleblower protection laws guarantee freedom of speech for workers and contractors in certain situations. These laws protect whistleblowers from retaliation for disclosing information that they reasonably believe provides evidence of a violation of any law, rule, or regulation, gross mismanagement, or a danger to public health and safety. However, it's important to note that the scope of these protections may vary depending on the country and the specific legislation in place.

Protection from Retaliation

Whistleblowers are often protected by law from employer retaliation. This includes protection from termination, suspension, demotion, wage garnishment, and other forms of mistreatment. For instance, the Corporations Act in Australia prohibits causing or threatening detriment to a whistleblower and breaching their confidentiality. Similarly, the U.S. Whistleblower Protection Act shields federal employees who disclose government illegality, waste, or corruption from adverse employment actions such as demotions or pay cuts.

Anonymity

Whistleblowers are often given the option to report misconduct anonymously, either through internal channels such as hotlines or external channels such as lawyers, media outlets, or government agencies. This anonymity helps protect their identity and shield them from potential repercussions.

Financial Assistance and Compensation

In some cases, whistleblowers may be entitled to financial assistance or compensation for the risks and hardships they face. For example, in France, whistleblowers may apply for financial assistance to cover legal fees and living expenses if their financial situation has deteriorated due to whistleblowing. Additionally, in certain circumstances, whistleblowers may be eligible for monetary rewards or a percentage of funds recovered by the government as a result of their disclosure.

Support and Counseling

Whistleblowing can take a significant toll on an individual's mental health and well-being. Therefore, some countries and organizations provide support services, counseling, and whistleblower defense funds to help whistleblowers cope with the stress, isolation, and psychological impacts of their actions.

It's important to note that the rights and protections available to whistleblowers can vary depending on the country, industry, and specific legislation in place. Whistleblowers should seek legal advice and understand the laws that apply to their specific situation.

What are the penalties for organisations or individuals that retaliate against whistleblowers?

Organisations or individuals that retaliate against whistleblowers can face a variety of penalties, depending on the jurisdiction and the specific circumstances of the case. Here are some of the possible consequences:

• Legal sanctions: In some countries, there are laws in place that specifically prohibit retaliation against whistleblowers, and violators can be subject to criminal or civil penalties. For example, in the United States, the Whistleblower Protection Act of 1989 protects federal employees from adverse consequences related to their employment after disclosing "Government illegality, waste, and corruption".
• Financial consequences: Whistleblower protection laws may allow whistleblowers to seek financial compensation for any harm suffered due to retaliation. This can include lost wages, damage to reputation, and emotional distress.
• Disciplinary action: Employers or individuals who retaliate against whistleblowers may face disciplinary action from their organisation or regulatory bodies. This can include termination of employment, suspension, or demotion.
• Loss of reputation: Retaliating against a whistleblower can damage the reputation of the organisation and the individuals involved. This can lead to negative publicity, loss of trust from stakeholders, and decreased public confidence in the organisation.
• Regulatory intervention: In some cases, regulatory bodies or government agencies may intervene to protect whistleblowers and hold accountable those who retaliate against them. This can include investigations, fines, or other enforcement actions.
• Criminal charges: In certain jurisdictions, retaliating against a whistleblower may constitute a criminal offence. This can result in criminal charges and potential imprisonment for those responsible.
• Civil lawsuits: Whistleblowers who experience retaliation may file civil lawsuits against their employers or the individuals involved. This can result in financial damages and other legal remedies.
• Negative impact on employee morale: Retaliation against whistleblowers can have a detrimental effect on employee morale and create a hostile work environment. This can lead to decreased productivity, high employee turnover, and a culture of fear within the organisation.
• Obstacles to future employment: Whistleblowers who face retaliation may find it difficult to secure future employment due to blacklisting or negative references from their previous employer.

What are the consequences for a whistleblower if protections are ignored or weakened?

Whistleblowers are protected by law from employer retaliation, but punishment such as termination, suspension, demotion, wage garnishment, and/or harsh mistreatment by other employees may still occur. If protections are ignored or weakened, a whistleblower may face the following consequences:

• Losing their job: Whistleblowers often face retaliation for their disclosure, including termination of employment.
• Financial and mental pressures: Whistleblowers may suffer financial and mental pressures, and some even lose their lives.
• Blacklisting: Whistleblowers may struggle to find employment after being blacklisted due to damaged reputations and poor references.
• Litigation: Whistleblowers often experience immense stress and litigation regarding harms such as unfair dismissal, which they often face with little or no support from unions.
• Ostracization: Depending on the circumstances, it is not uncommon for whistleblowers to be ostracized by their coworkers and discriminated against by future potential employers.
• Mobbing: A campaign directed at whistleblowers to eliminate them from the organization is known as mobbing, an extreme form of workplace bullying.
• Criminal charges: Whistleblowers may face criminal charges if they are found to be lying or disclosing classified information without authorization.
• Negative impact on overall employee morale: Retaliation against a whistleblower can have a negative impact on the morale of other employees, creating a hostile work environment.
• Poor psychological well-being: The socioeconomic impact of whistleblowing through loss of livelihood and family strain may also affect whistleblowers' psychological well-being.

Frequently asked questions