Whistleblower

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For other uses, see Whistleblower (disambiguation).
For whistleblower protection in the United States, see Whistleblower protection in the United States.

A whistleblower (whistle-blower or whistle blower)[1] is a person who exposes misconduct, alleged dishonest or illegal activity occurring in an organization. The alleged misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health and safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).

Whistleblowers frequently face reprisal, sometimes at the hands of the organization or group which they have accused, sometimes from related organizations, and sometimes under law.

Questions about the legitimacy of whistleblowing, the moral responsibility of whistleblowing, and the appraisal of the institutions of whistleblowing are part of the field of political ethics.

Overview[edit]

Origin of term[edit]

The term whistle-blower comes from the whistle a referee uses to indicate an illegal or foul play.[2][3] US civic activist Ralph Nader coined the phrase in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches".[4]

Internal[edit]

Ryszard Kukliński believed that he would be able to prevent the war in Europe between the Warsaw Pact and NATO countries by handing in 40,265 pages of secret military documents of East Germany and People's Republic of Poland to CIA in West Germany

Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it.[5] There are some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and control organization, but a choice of options for absolute confidentiality.[6]

External[edit]

External whistleblowers, however, report misconduct to outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In some cases, external whistleblowing is encouraged by offering monetary reward. This is, however, an act of treason if one has signed non-disclosure agreements.

Third party[edit]

The third party service involves utilising an external agency to inform the individuals at the top of the organisational pyramid of misconduct, without disclosing the identity of the whistleblower. This is a relatively new phenomenon and has been developed due to whistleblower discrimination. International Whistleblowers is an example of an organisation involved in delivering a third party service for whistleblowers.

Common reactions[edit]

Whistleblowers are sometimes seen as selfless martyrs for public interest and organizational accountability; others view them as "traitors" or "defectors." Some even accuse them of solely pursuing personal glory and fame, or view their behavior as motivated by greed in qui tam cases. Some academics (such as Thomas Alured Faunce) feel that whistleblowers should at least be entitled to a rebuttable presumption that they are attempting to apply ethical principles in the face of obstacles and that whistleblowing would be more respected in governance systems if it had a firmer academic basis in virtue ethics.[7][8]

It is probable that many people do not even consider blowing the whistle, not only because of fear of retaliation, but also because of fear of losing their relationships at work and outside work.[9]

Persecution of whistleblowers has become a serious issue in many parts of the world:

Employees in academia, business or government might become aware of serious risks to health and the environment, but internal policies might pose threats of retaliation to those who report these early warnings. Private company employees in particular might be at risk of being fired, demoted, denied raises and so on for bringing environmental risks to the attention of appropriate authorities. Government employees could be at a similar risk for bringing threats to health or the environment to public attention, although perhaps this is less likely.[10]

There are examples of "early warning scientists" being harassed for bringing inconvenient truths about impending harm to the notice of the public and authorities. There have also been cases of young scientists being discouraged from entering controversial scientific fields for fear of harassment.[10]

Although whistleblowers are often protected under law from employer retaliation, there have been many cases where punishment for whistleblowing has occurred, such as termination, suspension, demotion, wage garnishment, and/or harsh mistreatment by other employees. For example, in the United States, most whistleblower protection laws provide for limited "make whole" remedies or damages for employment losses if whistleblower retaliation is proven. However, many whistleblowers report there exists a widespread "shoot the messenger" mentality by corporations or government agencies accused of misconduct and in some cases whistleblowers have been subjected to criminal prosecution in reprisal for reporting wrongdoing.

As a reaction to this many private organizations have formed whistleblower legal defense funds or support groups to assist whistleblowers; three such examples are the National Whistleblowers Center[11] in the United States, Whistleblowers UK [12] ] and Public Concern at Work[13] in the United Kingdom. Depending on the circumstances, it is not uncommon for whistleblowers to be ostracized by their co-workers, discriminated against by future potential employers, or even fired from their organization. This campaign directed at whistleblowers with the goal of eliminating them from the organization is referred to as mobbing. It is an extreme form of workplace bullying wherein the group is set against the targeted individual.

Legal protection[edit]

Legal protection for whistleblowing varies from country to country and may depend on any of the country of the original activity, where and how secrets were revealed, and how they eventually became published or publicized. Over a dozen countries have now adopted comprehensive whistleblower protection laws which create mechanisms for reporting, investigate reports, and provide legal protections to the people who informed them. Over 50 countries have adopted more limited protections as part of their anti-corruption, freedom of information, or employment laws.[14] For purposes of the English Wikipedia, this section emphasizes the English-speaking world and covers other regimes only insofar as they represent exceptionally greater or lesser protections.

Australia[edit]

There are also laws in a number of states.[15] The former NSW Police Commissioner Tony Lauer summed up official government and police attitudes as: "Nobody in Australia much likes whistleblowers, particularly in an organisation like the police or the government." Mr Lauer's comments are clearly at odds with public support for WikiLeaks.

Whistleblowers Australia is an association for those who have exposed corruption or any form of malpractice, especially if they were then hindered or abused.[16]

Canada[edit]

The Office of the Public Sector Integrity Commissioner of Canada (PSIC) provides a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoings committed in the public sector. It also protects from reprisal public servants who have disclosed wrongdoing and those who have cooperated in investigations. The Office’s goal is to enhance public confidence in Canada’s federal public institutions and in the integrity of public servants.[17]

Mandated by the Public Servants Disclosure Protection Act (The Act), PSIC is a permanent and independent Agent of Parliament. The Act, which came into force on April 15, 2007, applies to most of the federal public sector, approximately 400,000 public servants.[18] This includes government departments and agencies, parent Crown corporations, the Royal Canadian Mounted Police and other federal public sector bodies.

Not all disclosures lead to an investigation as the Act sets out the jurisdiction of the Commissioner and gives the option not to investigate under certain circumstances. On the other hand, if PSIC conducts an investigation and finds no wrongdoing was committed, the Commissioner must report his findings to the discloser and to the organization’s chief executive. Also, reports of founded wrongdoing are presented before the House of Commons and the Senate in accordance with The Act. As of June 2014, a total of 9 reports have been tabled in Parliament.[19]

The Act also established the Public Servants Disclosure Protection Tribunal (PSDPT) to protect public servants by hearing reprisal complaints referred by the Public Sector Integrity Commissioner. The Tribunal can grant remedies in favour of complainants and order disciplinary action against persons who take reprisals.

PSIC’s current Commissioner is Mr. Mario Dion. Previously, he has served in various senior roles in the public service, including as Associate Deputy Minister of Justice, Executive Director and Deputy Head of the Office of Indian Residential Schools Resolution of Canada, and as Chair of the National Parole Board.

Jamaica[edit]

In Jamaica, the Protected Disclosures Act, 2011[20] received assent in March 2011. It creates a comprehensive system for the protection of whistleblowers in the public and private sector. It is based on the UK's Public Interest Disclosure Act.

India[edit]

The Government of India has been considering adopting a whistleblower protection law for several years. In 2003, the Law Commission of India recommended the adoption of the Public Interest Disclosure (Protection of Informers) Act, 2002.[21] In August 2010, the Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was introduced into the Lok Sabha, lower house of the Parliament of India.[22] The Bill was approved by the cabinet in June, 2011. The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was renamed as The Whistleblowers' Protection Bill, 2011 by the Standing Committee on Personnel, Public Grievances, Law and Justice.[23] The Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha on 28 December 2011.[24] and by the Rajyasabha on 21 February 2014. The Whistle Blowers Protection Act, 2011 has received the Presidential assent on May 9, 2014 and the same has been subsequently published in the official gazette of the Government of India on May 9, 2011 by the Ministry of Law and Justice, Government of India.

Ireland[edit]

The government of Ireland committed to adopting a comprehensive whistleblower protection law in January 2012. The bill will reportedly cover both the public and private sectors.[25]

Netherlands[edit]

The Netherlands has measures in place to mitigate the risks of whistleblowing: the whistleblower advice centre (Adviespunt Klokkenluiders) offers advice to whistleblowers, and the Parliament recently passed a proposal to establish a so-called house for whistleblowers, to protect them from the severe negative consequences that they might endure (Kamerstuk, 2013). Dutch media organisations also provide whistleblower support; on 9 September 2013 [26] a number of major Dutch media outlets supported the launch of Publeaks, which provides a secure website for people to leak documents to the media. Publeaks is designed to protect whistleblowers. It operates on the GlobaLeaks software developed by the Hermes Center for Transparency and Digital Human Rights, which supports whistleblower-oriented technologies internationally.[27]

United Kingdom[edit]

The United Kingdom (UK) Government's Department of Business, Innovation and Skills (BIS) initiated a Whistleblowing Commission in October 2013 to explore whether there are any other aspects of the law governing whistleblowing which may not be protecting whistleblowers OR encouraging them to come forward about wrongdoing. The UK Government are endeavouring to encourage a cultural change on the workplace so that employees can feel confident enough to air concerns without fear of reprisal. Recognizing that the Public Interest Disclosure Act (PIDA) 1998 is more concerned with detriment after the whistleblowing event, the Whistleblowing Commission is particularly concerned with additional whistleblower protections that may be instituted from the very outset, or even from BEFORE the initial disclosure of wrongdoing, through a Whistleblower Registration Scheme overseen by an independent body. Recommendations and Guidelines across all industrial and governmental sectors are due publication in Spring 2014.

United States[edit]

Under most federal whistleblower statutes, in order to be considered a whistleblower in the United States, the federal employee must have reason to believe his or her employer has violated some law, rule or regulation; testify or commence a legal proceeding on the legally protected matter; or refuse to violate the law.

In cases where whistleblowing on a specified topic is protected by statute, U.S. courts have generally held that such whistleblowers are protected from retaliation.[28] However, a closely divided U.S. Supreme Court decision, Garcetti v. Ceballos (2006) held that the First Amendment free speech guarantees for government employees do not protect disclosures made within the scope of the employees' duties.

Whistleblowing in the U.S. is affected by a complex patchwork of contradictory laws.

In the United States, legal protections vary according to the subject matter of the whistleblowing, and sometimes the state in which the case arises.[29] In passing the 2002 Sarbanes–Oxley Act, the Senate Judiciary Committee found that whistleblower protections were dependent on the "patchwork and vagaries" of varying state statutes.[30] Still, a wide variety of federal and state laws protect employees who call attention to violations, help with enforcement proceedings, or refuse to obey unlawful directions.

The first US law adopted specifically to protect whistleblowers was the 1863 United States False Claims Act (revised in 1986), which tried to combat fraud by suppliers of the United States government during the Civil War. The act encourages whistleblowers by promising them a percentage of the money recovered or damages won by the government and protects them from wrongful dismissal.[31]

Another US law that specifically protects whistleblowers is the Lloyd–La Follette Act of 1912. It guaranteed the right of federal employees to furnish information to the United States Congress. The first US environmental law to include an employee protection was the Clean Water Act of 1972. Similar protections were included in subsequent federal environmental laws, including the Safe Drinking Water Act (1974), Resource Conservation and Recovery Act (1976), Toxic Substances Control Act of 1976, Energy Reorganization Act of 1974 (through 1978 amendment to protect nuclear whistleblowers), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund Law) (1980), and the Clean Air Act (1990). Similar employee protections enforced through OSHA are included in the Surface Transportation Assistance Act (1982) to protect truck drivers, the Pipeline Safety Improvement Act (PSIA) of 2002, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), and the Sarbanes–Oxley Act, enacted on July 30, 2002 (for corporate fraud whistleblowers).

Investigation of retaliation against whistleblowers under 20 federal statutes falls under the jurisdiction of the Office of the Whistleblower Protection Program[32] of the United States Department of Labor's[33] Occupational Safety and Health Administration (OSHA).[34] New whistleblower statutes enacted by Congress which are to be enforced by the Secretary of Labor are generally delegated by a Secretary's Order[35] to OSHA's Office of the Whistleblower Protection Program (OWPP).

The patchwork of laws means that victims of retaliation need to be alert to the laws at issue to determine the deadlines and means for making proper complaints. Some deadlines are as short as 10 days (for Arizona State Employees to file a "Prohibited Personnel Practice" Complaint before the Arizona State Personnel Board; and Ohio public employees to file appeals with the State Personnel Board of Review). It is 30 days for environmental whistleblowers to make a written complaint to the Occupational Safety and Health Administration (OSHA). Federal employees complaining of discrimination, retaliation or other violations of the civil rights laws have 45 days to make a written complaint to their agency's equal employment opportunity (EEO) officer. Airline workers and corporate fraud whistleblowers have 90 days to make their complaint to OSHA. Nuclear whistleblowers and truck drivers have 180 days to make complaints to OSHA. Victims of retaliation against union organizing and other concerted activities to improve working conditions have six months to make complaints to the National Labor Relations Board (NLRB). Private sector employees have either 180 or 300 days to make complaints to the federal Equal Employment Opportunity Commission (depending on whether their state has a "deferral" agency) for discrimination claims on the basis of race, gender, age, national origin or religion. Those who face retaliation for seeking minimum wages or overtime have either two or three years to file a civil lawsuit, depending on whether the court finds the violation was "willful."

Those who report a false claim against the federal government, and suffer adverse employment actions as a result, may have up to six years (depending on state law) to file a civil suit for remedies under the US False Claims Act (FCA).[36] Under a qui tam provision, the "original source" for the report may be entitled to a percentage of what the government recovers from the offenders. However, the "original source" must also be the first to file a federal civil complaint for recovery of the federal funds fraudulently obtained, and must avoid publicizing the claim of fraud until the US Justice Department decides whether to prosecute the claim itself. Such qui tam lawsuits must be filed under seal, using special procedures to keep the claim from becoming public until the federal government makes its decision on direct prosecution.

Federal employees could benefit from the Whistleblower Protection Act,[37] and the No-FEAR Act (which made individual agencies directly responsible for the economic sanctions of unlawful retaliation). Federal protections are enhanced in those few cases where the Office of Special Counsel will support the whistleblower's appeal to the Merit Systems Protection Board (MSPB). The MSPB rejects the vast majority of whistleblower appeals, however, as does the Federal Circuit Court of Appeals.[38] Efforts to strengthen the law have met with failure in recent years, but minor reforms seem likely. See, e.g.,Whistleblower Protection Enhancement Act of 2011, S. 743, H. Rep. 3289, 112th Cong. (2011).

Other countries[edit]

There are comprehensive laws in New Zealand and South Africa. A number of other countries have recently adopted comprehensive whistleblower laws including Ghana, South Korea, and Uganda. They are also being considered in Kenya and Rwanda. The European Court of Human Rights ruled in 2008 that whistleblowing was protected as freedom of expression.[39]

See also[edit]

Notes and references[edit]

  1. ^ "Yahoo Education". Education.yahoo.com. Retrieved 2012-07-08. 
  2. ^ "Etymonline.com". Etymonline.com. Retrieved 2012-07-08. 
  3. ^ "Wordorigins.org". Wordorigins.org. Retrieved 2012-07-08. 
  4. ^ Nader, Petkas, and Blackwell, Whistleblowing (1972).
  5. ^ Dealing with—or reporting—"unacceptable" behavior (with additional thoughts about the "Bystander Effect") Mary Rowe MIT, Linda Wilcox HMS, Howard Gadlin NIH (2009), Journal of the International Ombudsman Association 2(1), online at ombudsassociation.org
  6. ^ Mary Rowe, "Options and choice for conflict resolution in the workplace" in Negotiation: Strategies for Mutual Gain, by Lavinia Hall (ed.), Sage Publications, Inc., 1993, pp. 105–119.
  7. ^ Faunce, T.A. "Developing and Teaching the Virtue-Ethics Foundations of Healthcare Whistle Blowing", Monash Bioethics Review. 2004; 23(4): 41–55
  8. ^ Faunce, T.A. and Jefferys, S. "Whistleblowing and scientific misconduct: Renewing legal and virtue ethics foundations". Journal of Medicine and Law 2007, 26(3): 567–84.
  9. ^ Rowe, Mary & Bendersky, Corinne, "Workplace Justice, Zero Tolerance and Zero Barriers: Getting People to Come Forward in Conflict Management Systems," in Negotiations and Change, From the Workplace to Society, Thomas Kochan and Richard Locke (eds), Cornell University Press, 2002. See also "Dealing with — or Reporting — 'Unacceptable' Behavior (With additional thoughts about the 'Bystander Effect')" ©2009Mary Rowe MIT, Linda Wilcox HMS, Howard Gadlin NIH, Journal of the International Ombudsman Association 2(1), online at ombudsassociation.org
  10. ^ a b European Environment Agency) (Jan 23, 2013). "Late lessons from early warnings: science, precaution, innovation: Full Report". p. 614. 
  11. ^ "whistleblowers.org". whistleblowers.org. Retrieved 2012-07-08. 
  12. ^ "whistleblowersUK.org". whistlebloweruk.org. Retrieved 2014-03-07. 
  13. ^ "pcaw.co.uk". pcaw.co.uk. Retrieved 2012-07-08. 
  14. ^ Banisar, "Whistleblowing: International Standards and Developments", in CORRUPTION AND TRANSPARENCY: DEBATING THE FRONTIERS BETWEEN STATE, MARKET AND SOCIETY, I. Sandoval, ed., World Bank-Institute for Social Research, UNAM, Washington, D.C., 2011 available online at ssrn.com
  15. ^ "Whistleblowers Australia". Whistleblowers.org.au. 
  16. ^ Whistleblowers Australia (2012-02-12). "Whistleblowers Australia". Whistleblowers.org.au. Retrieved 2012-07-08. 
  17. ^ Government of Canada, PSIC. "Background, Objectives, Scope". Office of the Public Sector Integrity Commissioner. Retrieved 16 June 2014. 
  18. ^ Government of Canada, PSIC. "The Servants Disclosure Protection Act". Office of the Public Sector Integrity Commissioner. Retrieved 16 June 2014. 
  19. ^ Government of Canada, PSIC. "Case Reports". Office fo the Public Sector Integrity Commissioner. Retrieved 16 June 2014. 
  20. ^ http://www.japarliament.gov.jm/attachments/341_The%20Protected%20Disclosures%20Act,%202011.pdf
  21. ^ "Publin Interest Disclosure Bill" (PDF). Retrieved 2013-06-13. 
  22. ^ The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 [1]
  23. ^ "Legislative Brief" (PDF). Retrieved 2013-06-13. 
  24. ^ PTI (2011-12-28). "Whistle-blowers Bill passed". Chennai, India: The Hindu. Retrieved 2012-07-08. 
  25. ^ "Whistleblower Bill to cover public and private sectors". Irish Times. 30 January 2011. 
  26. ^ "Vanaf vandaag: anoniem lekken naar media via doorgeefluik Publeaks". volkskrant.nl. Retrieved 22 February 2014. 
  27. ^ "Handling ethical problems in counterterrorism An inventory of methods to support ethical decisionmaking". RAND Corporation. Retrieved 24 February 2014. 
  28. ^ "DOL.gov". Oalj.dol.gov. Retrieved 2012-07-08. 
  29. ^ "Peer.org". Peer.org. Retrieved 2012-07-08. 
  30. ^ Congressional Record p. S7412; S. Rep. No. 107–146, 107th Cong., 2d Session 19 (2002).
  31. ^ "Answers.com". Answers.com. Retrieved 2012-07-08. 
  32. ^ "Whistleblowers.gov". Whistleblowers.gov. Retrieved 2012-07-08. 
  33. ^ "DOL.gov". DOL.gov. Retrieved 2012-07-08. 
  34. ^ "Osha.gov". Osha.gov. 2012-04-28. Retrieved 2012-07-08. 
  35. ^ "Osha.gov". Osha.gov. Retrieved 2012-07-08. 
  36. ^ 31 U.S.C. § 3730 (h)
  37. ^ 5 U.S.C. § 1221 (e)
  38. ^ Robert J. McCarthy, Blowing in the Wind: Answers for Federal Whistleblowers, 3 WILLIAM & MARY POLICY REVIEW 184 (2012); Robert J. McCarthy, Taking the Stand: Why Federal Whistleblowers are Unprotected from Retaliation, ‏ The District of Columbia Bar: WASHINGTON LAWYER (October 2012)
  39. ^ Guja v. Moldova, Application no. 14277/04 (2008)

Bibliography[edit]

External links[edit]