Gavin Howe
Whistleblowers are individuals who report waste, fraud, abuse, corruption, or dangers to public health and safety to someone who has the power to address the wrongdoing. Whistleblower laws are in place to protect individuals from retaliation for making such disclosures. These laws vary across different jurisdictions, and there are a growing number of whistleblower laws in countries outside the U.S., each with its own rules and regulations. In the U.S., there are dozens of whistleblower laws at the federal, state, and local levels, and five agencies dedicated to enforcing whistleblower and anti-retaliation laws.
| Characteristics | Values |
|---|---|
| Definition | A whistleblower is someone who reports waste, fraud, abuse, corruption, or dangers to public health and safety to someone who is in a position to rectify the wrongdoing. |
| Insider status | Being an agency or company “insider” is not essential to serving as a whistleblower. |
| Formal status | To enjoy the protections and rewards of whistleblower law, individuals must adhere to the definitions and procedures in the laws under which they are seeking formal whistleblower status. |
| Protected disclosures | Whistleblowers are protected from retaliation for making a protected disclosure. |
| Protected disclosure criteria | A disclosure is protected if it is based on evidence of wrongdoing. |
| Protected disclosure channels | Protected disclosures can be made to a supervisor, someone higher up in management, or through a complaint to the OIG Hotline or the Office of Special Counsel (OSC). |
| Whistleblower protection laws | Whistleblower Protection Act (WPA) (5 U.S.C. § 2302(b)(8)), Whistleblower Protection Enhancement Act of 2012, Uniformed Services Employment and Reemployment Rights Act (USERRA), Occupational Safety and Health Act of 1970, and dozens of other federal, state, and local laws in the U.S. |
| Whistleblower protection agencies | Office of Special Counsel (OSC), Office of Federal Contract Compliance Programs (OFCCP), Office of Inspector General (OIG), Department of Justice (DOJ), Federal Trade Commission (FTC), and U.S. Department of Labor (DOL). |
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What You'll Learn
Whistleblower protection laws
In the United States, federal laws provide strong protections for whistleblowers. The Whistleblower Protection Act (WPA) protects federal employees or applicants for federal employment from retaliation for making protected disclosures. The WPA also imposes penalties on supervisors who retaliate against whistleblowers. A disclosure is protected under the WPA if the employee reasonably believes it to be true and is reporting evidence of wrongdoing. The Office of Special Counsel (OSC) is the entity tasked with investigating whistleblower retaliation against federal employees and can demand that the agency undo any retaliation and compensate the affected employee.
The U.S. Department of Labor also plays a crucial role in enforcing whistleblower and anti-retaliation laws. Five agencies within the department enforce these laws, including the Occupational Safety and Health Administration (OSHA), which ensures safe and healthy working conditions, and the Office of Federal Contract Compliance Programs (OFCCP), which enforces equal employment opportunity laws and prohibits discrimination based on protected characteristics. The Department of Labor's whistleblower protection laws safeguard individuals from retaliation, intimidation, threats, coercion, harassment, and discrimination for engaging in protected activities.
Additionally, specific industries have unique whistleblower protection laws. For example, the Federal Trade Commission's (FTC) OIG provides whistleblower protection for employees of federal contractors, subcontractors, grantees, and subgrantees who report waste, fraud, and abuse related to federal contracts and grants. Similarly, the Department of Justice (DOJ) protects its employees, contractors, subcontractors, grantees, and personal services contractors from retaliation for reporting wrongdoing within the DOJ or by DOJ employees.
It is important to note that whistleblower protection laws may differ based on specific circumstances, and individuals should refer to the relevant laws and agencies for detailed information. These laws ensure that whistleblowers can report misconduct without fear of reprisal, promoting transparency and accountability in organisations and governments.
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Whistleblower retaliation
The Whistleblower Protection Enhancement Act of 2012 outlines specific provisions that safeguard whistleblowers from retaliation. These provisions apply to non-disclosure policies, forms, or agreements within the federal government, ensuring that employees' rights and obligations are upheld.
In the United States, several agencies enforce whistleblower and anti-retaliation laws. The Department of Labor, through its various offices and agencies, plays a pivotal role in protecting whistleblowers. The Occupational Safety and Health Administration (OSHA), established under the Occupational Safety and Health Act of 1970, enforces standards to ensure safe and healthy working conditions for employees. OSHA prohibits employers from retaliating against employees for engaging in protected activities, such as reporting unsafe conditions or violations of laws.
Additionally, the U.S. Department of Justice (DOJ) provides protections for whistleblowers within its organization. All DOJ employees, contractors, subcontractors, grantees, subgrantees, and personal services contractors are safeguarded from retaliation for making protected disclosures. If retaliation occurs, individuals can file a complaint with the U.S. Office of Special Counsel (OSC) or through the DOJ's internal channels, such as the OIG Hotline. The OSC has the authority to seek temporary stays of pending personnel actions and can intervene on behalf of the affected employee.
It is important to note that whistleblower retaliation can take various forms, including explicit acts such as firing or demoting an employee, or more subtle actions like excluding them from important meetings or denying promotional opportunities. The law recognizes these as adverse actions as forms of retaliation, which can deter employees from raising legitimate concerns. Therefore, protections are in place to ensure that whistleblowers are shielded from any form of retaliation, ensuring their rights are upheld and their contributions to uncovering wrongdoing are valued.
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Protected disclosures
Whistleblowers are protected by law from retaliation for making a protected disclosure. A disclosure is considered protected if it meets certain criteria. For instance, in the U.S. Department of Justice (DOJ), a protected disclosure must be based on a reasonable belief that the information disclosed is evidence of wrongdoing. It is important to note that disclosing classified information that reveals waste, fraud, or abuse is not protected unless it is done in accordance with the laws and rules governing the handling and transmission of such information.
The Whistleblower Protection Act (WPA) and the Whistleblower Protection Enhancement Act (WPEA) provide further clarification on protected disclosures. According to the WPEA, a whistleblower disclosure is protected even if it is made to a supervisor or someone involved in the wrongdoing, and regardless of the employee's motive or whether they were on or off duty. The WPA also protects disclosures that meet other statutory requirements.
Federal employees in the U.S. have rights and protections under the Whistleblower Protection Act, as amended by the WPEA and the Follow the Rules Act. The Office of Special Counsel (OSC) has published a guide to inform federal employees about their rights and protections under these laws. Additionally, the OSC website and pamphlet, "Know Your Rights When Reporting Wrongs," provide valuable resources for understanding protected disclosures and whistleblower rights.
It is unlawful for an employer or any personnel action to retaliate against an employee for making a protected disclosure. If an individual believes they have experienced retaliation, they can file a retaliation complaint. In the case of DOJ employees, complaints can be submitted to the OSC or through the OIG Hotline. The OSC has jurisdiction over retaliation complaints for most federal employees, except for FBI employees, who can submit complaints to the OIG Hotline or the DOJ Office of Professional Responsibility (OPR).
Whistleblower protection laws are enforced by various agencies, including the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA), which ensures safe and healthy working conditions, and the Mine Safety and Health Administration (MSHA), which focuses on safety and health in mines. The Uniformed Services Employment and Reemployment Rights Act (USERRA) also protects whistleblowers by prohibiting employer discrimination based on military service or obligation. These laws provide a framework for protecting individuals who engage in whistleblowing activities.
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Whistleblower rights
Whistleblowers are protected by law from any retaliation for reporting evidence of wrongdoing. This protection is provided by the Whistleblower Protection Enhancement Act of 2012, which prohibits agencies from issuing or enforcing non-disclosure agreements that do not acknowledge an employee's rights and liabilities. These rights include the ability to communicate with Congress and report to an Inspector General or the Office of Special Counsel (OSC) about any wrongdoing, mismanagement, or danger to public health or safety.
The U.S. Department of Labor enforces whistleblower and anti-retaliation laws through five agencies, including the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). These agencies ensure safe working conditions and enforce health and safety rules, respectively. The Uniformed Services Employment and Reemployment Rights Act (USERRA) also protects service members' employment rights upon returning from service and prohibits employer discrimination based on military service.
The Department of Justice (DOJ) also provides protections for its employees, contractors, and subcontractors, among others, who are encouraged to report any wrongdoing or concerns to the OIG Hotline. The OIG's Whistleblower Protection Coordinator educates employees about their rights and ensures that complaints are reviewed promptly and thoroughly. If retaliation is suspected, a complaint can be submitted to the OSC or through the OIG Hotline.
FBI employees, however, have a different process for reporting retaliation. They may submit a complaint to the OIG Hotline or the DOJ Office of Professional Responsibility (OPR), which will review and investigate the complaint. For DOJ contractors and subcontractors, the OIG Hotline is also available to report retaliation.
Whistleblowers are protected from various forms of retaliation, including firing, demotion, denial of overtime or promotion, or reduction in pay or hours. These protections extend to miners and their representatives, who have the right to refuse work if they believe it threatens their health or safety and can file complaints about hazardous conditions.
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Whistleblower laws outside the US
Whistleblower protection has been recognised as part of international law since 2003, when the United Nations adopted the Convention Against Corruption. This convention was subsequently signed by 140 nations and formally ratified, accepted, approved, or acceded to by 137 nations, including the United States. Article 32 and Article 33 of the UN Convention endorse protection for whistleblowers. However, the strength of whistleblower laws varies substantially from country to country. Many countries have no laws at all, while others offer only weak protections.
The US has enacted dozens of federal laws aimed at protecting whistleblowers and incentivising them to come forward. Some of the whistleblower laws that reward non-US citizens include the Foreign Corrupt Practices Act, Dodd-Frank Act, False Claims Act, and Internal Revenue Act. The False Claims Act has a broad scope, applying to cases worldwide involving US federal spending, procurement, or contracting. It contains a highly successful whistleblower provision that allows whistleblowers to bring lawsuits on behalf of the US government, known as a "qui tam action". Under this provision, whistleblowers can be rewarded for confidentially disclosing fraud that results in a financial loss to the federal government. Provided that their original information results in a successful prosecution, whistleblowers are awarded a mandatory reward of between 15% to 30% of the collected proceeds.
The Internal Revenue Act provides rewards to whistleblowers who report violations of internal revenue laws and underpayments of taxes to the Internal Revenue Service (IRS). Its scope includes international money laundering. Following 2006 revisions, rewards are now mandatory for whistleblowers in large tax cases. The IRS is required to give eligible whistleblowers 15% to 30% of the amount recovered from successful prosecutions. Many environmental and wildlife protection laws also authorise rewards to non-US citizens for original information that leads to a successful prosecution or enforcement action against individuals or parties violating wildlife and environmental protection statutes.
Within the US, five agencies enforce whistleblower and anti-retaliation laws. These include the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), and the Office of Federal Contract Compliance Programs (OFCCP). Whistleblowers are protected from retaliation, intimidation, threats, coercion, harassment, and discrimination.
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Frequently asked questions
A whistleblower is someone who reports waste, fraud, abuse, corruption, or dangers to public health and safety to someone who can address the wrongdoing. Whistleblowers usually work inside the organization where the wrongdoing is taking place, but this is not always the case.
Whistleblowers are legally protected by various laws, including the Whistleblower Protection Act (WPA), the Whistleblower Protection Enhancement Act of 2012, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). These laws prohibit retaliation against whistleblowers and provide them with legal recourse if retaliation occurs.
Whistleblowers are protected from retaliation, including termination, demotion, or discrimination, for making protected disclosures. Protected disclosures are reports of wrongdoing made to the appropriate authorities, such as the Office of Special Counsel (OSC) or the Office of Inspector General (OIG).
Whistleblowers may be eligible for financial rewards in some cases. The specific rewards vary depending on the jurisdiction and the nature of the whistleblowing. It is important for potential whistleblowers to understand the legal protections and rewards available to them before taking action.
