Gavin Howe
Whistleblower laws are designed to protect individuals who expose illegal, unethical, or improper activities within an organization. In the United States, whistleblower protection is a constitutional right, with the first whistleblower legislation enacted over 240 years ago. The Whistleblower Protection Act of 1989 is a federal law that safeguards government whistleblowers from retaliation when reporting violations of the law, mismanagement, or threats to public health and safety. Despite this, there is ongoing debate about the effectiveness of these laws, with critics arguing that courts have misinterpreted whistleblower protections and created a hostile environment for claimants. The constitutionality of whistleblower laws is further complicated by national security concerns and the protection of classified information. Intelligence community whistleblowers, for example, face internal enforcement mechanisms and limited access to legal recourse. As such, the discussion surrounding whistleblower laws and their constitutionality remains a complex and evolving topic in the United States.
| Characteristics | Values |
|---|---|
| Whistleblower Definition | A person who exposes any kind of information or activity that is deemed illegal, unethical, or incorrect within an organization that is either private or public. |
| Whistleblower Protection Act | A federal law in the United States since 1989 that protects federal whistleblowers who work for the government and report possible violations, mismanagement, gross waste of funds, abuse of authority, or danger to public health and safety. |
| Whistleblower Rights | Protected from retaliation, guaranteed freedom of speech, and rewarded for risk-taking in certain situations. |
| Whistleblower Protections | Constitutional protections under the Fifth, Sixth, Seventh, and Fourteenth Amendments; specific laws like the Intelligence Community Whistleblower Protection Act, False Claims Act, and Whistleblower Protection Enhancement Act; and protections for classified information disclosures. |
| Whistleblower Claims | Common characteristics include the plaintiff's employment status, the defendant's knowledge, retaliatory action, and the connection between whistleblowing and unfair treatment. |
| Whistleblower Appeals | The Court of Appeals for the Federal Circuit is the only court empowered to hear appeals, but it has been criticized for its low rate of ruling in favor of whistleblowers. |
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What You'll Learn
Whistleblower Protection Act of 1989
The Whistleblower Protection Act of 1989 is a United States federal law that safeguards federal whistleblowers who work for the government and report any violation of laws, rules, or regulations, as well as mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. Whistleblowers are required to demonstrate that their disclosure contributed to adverse actions against them to prove reprisal.
The Act empowers the Special Counsel to represent and act as legal counsel for employees alleging prohibited personnel practices, especially whistleblowers. It also authorises Federal agencies to give preference to whistleblowers when granting transfers and provides interim relief for certain appellants to the Board. The Whistleblower Protection Act of 1989 separates the Office of Special Counsel from the Merit Systems Protection Board, which adjudicates whistleblower complaints using appointed administrative law judges.
The Whistleblower Protection Act of 1989 also authorises the Board to grant protective orders to protect witnesses or other individuals from harassment during proceedings before the Board or during a Special Counsel investigation. It requires the Board to select the place closest to the individual involved when considering alternative locations for hearings or proceedings, unless the total administrative costs to the government are lower elsewhere.
The Whistleblower Protection Act of 1989 has been criticised for not providing adequate protection for whistleblowers in the intelligence community and those who face retaliation in the form of the withdrawal of their security clearance. The Federal Circuit has been criticised for misinterpreting whistleblower laws and setting a precedent hostile to claimants. The US Supreme Court ruled in 2006 that government employees are not protected from retaliation by their employers under the First Amendment of the Constitution when speaking pursuant to their official job duties.
To address these issues, S. 743 proposes strengthening the Whistleblower Protection Act and creating new protections for intelligence employees and those who have had their security clearance withdrawn in retaliation for legitimate whistleblower disclosures.
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Whistleblower Protection Enhancement Act of 2012
The Whistleblower Protection Enhancement Act of 2012 (WPEA) was signed into law by President Obama on November 27, 2012. The WPEA strengthens protections for federal employees who disclose evidence of waste, fraud, or abuse. The law also requires that any non-disclosure policy, form, or agreement (NDA) includes a specific statement, and NDAs executed without this statement may still be enforced if agencies give employees notice of the statement.
The WPEA provides that a disclosure shall not be excluded from whistleblower protections for several reasons, including:
- The disclosure was made to a supervisor or someone who participated in an activity that the employee believed to be evidence of gross mismanagement, waste, abuse of authority, or a danger to public health or safety.
- The disclosure revealed information that had been previously disclosed.
- The disclosure was not made in writing.
- The disclosure was made while the employee was off duty.
The WPEA also allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages incurred due to an agency investigation of an employee that was commenced in retaliation for the disclosure of protected activity. The law adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). The WPEA revises the standard of proof in disciplinary proceedings against an agency employee who takes adverse action against a whistleblower, requiring the Office of Special Counsel to demonstrate that the whistleblower's protected disclosure was a "contributing factor" in the personnel action.
The WPEA also includes as a prohibited personnel practice the implementation or enforcement of any non-disclosure policy that does not contain a specific statement that its provisions are consistent with and do not supersede or alter the employee's rights or liabilities created by existing laws relating to classified information, communications to Congress, reporting to an Inspector General, or any other whistleblower protection.
The WPEA provides enhanced protection for government whistleblowers by expanding the scope of protection and judicial review and requiring the designation of a Whistleblower Protection Ombudsman. It is important to note that the WPEA does not supersede or alter existing employee obligations or rights created by statute or Executive Order relating to classified information, communications to Congress, reporting violations, or other whistleblower protections.
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National security whistleblowers
The Whistleblower Protection Act of 1989 is a US federal law that safeguards federal whistleblowers who work for the government and report possible violations of law, rules, or regulations, as well as mismanagement, waste of funds, abuse of authority, or dangers to public health and safety. However, the Federal Circuit has been criticised for its narrow interpretation of whistleblower laws, with a high rate of denial for whistleblower appeals.
The NSWBC has advocated for expanding the Whistleblower Protection Act to fully cover national security whistleblowers and prohibit the retaliatory revocation of security clearances. A bill, H.R. 1317, the Federal Employees Protection of Disclosures Act, was introduced in 2005 to address these issues, but no further action was taken.
The Whistleblower Protection Enhancement Act of 2012 also strengthened protections for whistleblowers, ensuring that non-disclosure agreements do not supersede an employee's rights to report wrongdoing to Congress or an Inspector General. Additionally, the Department of Justice's Office of the Inspector General (OIG) provides protections for whistleblowers, allowing reports of wrongdoing to be submitted directly to the OIG Hotline, with further support from the Whistleblower Protection Coordinator.
Overall, while there are legal protections in place for national security whistleblowers, there is ongoing work to expand and strengthen these laws to ensure comprehensive coverage and encourage the reporting of corruption and misconduct.
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Whistleblower rights and protections
Whistleblowers are workers who report certain types of wrongdoing, usually within their workplace. This wrongdoing must be in the public interest, meaning it must affect others, such as the general public. Whistleblowers are protected by law and should not face unfair treatment or lose their jobs because they reported an incident.
In the United States, the Whistleblower Protection Act of 1989 is a federal law that protects federal whistleblowers who work for the government and report the possible existence of activities constituting a violation 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. A federal agency violates the Whistleblower Protection Act if its authorities take or threaten to take retaliatory personnel action against any employee or applicant because of their disclosure of information. The Office of Special Counsel investigates federal whistleblower complaints.
The Whistleblower Protection Enhancement Act of 2012 applies to non-disclosure policies, forms, or agreements of the federal government with current or former employees. It ensures that employees' rights and liabilities are upheld when they report violations of law, rules, or regulations, as well as mismanagement, gross waste of funds, abuse of authority, or danger to public health and safety.
In the United Kingdom, the Public Interest Disclosure Act (PIDA) provides protection for whistleblowers. However, certain types of people are not covered by PIDA, including the genuinely self-employed, trustees, volunteers, and non-executive directors. There have been calls to reform PIDA and expand the scope of protection to include more individuals, such as self-employed contractors, volunteers, and non-executive directors.
Additionally, the Police Reform Act 2002 added police officers to the extended definition of a "worker" in the Employment Rights Act, granting them whistleblowing protection. Similarly, the Court of Appeal has held that judges should be granted whistleblowing protection to uphold their right to freedom of expression under the European Convention on Human Rights.
While whistleblower protection laws exist, there have been criticisms and challenges regarding their interpretation and effectiveness. For example, the US Supreme Court ruled in 2006 that government employees are not protected from retaliation by their employers under the First Amendment when speaking pursuant to their official job duties. Furthermore, the Federal Circuit has been criticized for its narrow interpretation of whistleblower laws, which has resulted in a low success rate for claimants.
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Whistleblower constitutional protections
Whistleblower laws and executive orders in the United States include the Whistleblower Protection Act of 1989, the Intelligence Community Whistleblower Protection Act of 1998, Presidential Policy Directive 19, and the Intelligence Authorization Act for Fiscal Year 2014. These laws protect federal whistleblowers who work for the government and report on the possible existence of activities constituting a violation 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.
Whistleblower protection laws and regulations guarantee freedom of speech for workers and contractors in certain situations. 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, an abuse of authority, or a substantial and specific danger to public health or safety.
However, there are some exemptions to whistleblower protections. These include information that is classified to protect national security, information related solely to the internal personnel rules and practices of an agency, information that is prohibited from disclosure by another federal law, trade secrets or confidential commercial or financial information, privileged communications within or between agencies, and information that, if disclosed, would invade another individual's personal privacy.
Additionally, there are specific constitutional protections afforded to whistleblowers under the Fifth, Sixth, and Seventh Amendments. Under the Fifth Amendment, employees cannot be compelled to answer questions about potential crimes and cannot be deprived of life, liberty, or property without due process of law. The Sixth Amendment guarantees the right of the accused to be informed of the nature and cause of the accusation and to confront witnesses against them. The Seventh Amendment preserves the right to a trial by jury in certain cases.
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Frequently asked questions
A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or incorrect within an organization that is either private or public.
The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report the possible existence of activities constituting a violation of law, rules, or regulations.
Whistleblower protection laws and regulations guarantee freedom of speech for workers and contractors in certain situations. Whistleblowers are protected from retaliation for disclosing information that they reasonably believe provides evidence of a violation of any law, rule, or regulation.
The Fifth Amendment states that a person shall not "be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law". The Sixth Amendment states that the accused shall have the right "to be informed of the nature and cause of the accusation". The Seventh Amendment states that in cases where the value in controversy exceeds $20, the right to a trial by jury shall be preserved. The Fourteenth Amendment states that all persons shall be given the equal protection of the laws.
Some examples of whistleblower protection laws in the United States include the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), the Whistleblower Protection Enhancement Act of 2012, and the False Claims Act.
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