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Whistleblowing

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For the 2010 film, see The Whistleblower.

A whistleblower is a person who raises a concern about alleged wrongdoing occurring in an organization or body of people. Usually this person would be from that same 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/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.

Overview

Origin of term

The term whistleblower derives from the practice of British police officers, who would blow their whistles when they noticed the commission of a crime. The whistle would alert other law enforcement officers and the general public of danger.[1]

Definition

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.[2] There is 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 individuals, including an option that offers near absolute confidentiality.[3]. See also the Ethics Resource Center 2009 Supplemental RESEARCH BRIEF, from the National Business Ethics Survey: 'Who’s Telling You What You Need to Know, Who Isn’t, and What You Can Do About It' .


External whistleblowers, however, report misconduct on 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.[4]

Under most U.S. federal whistleblower statutes, in order to be considered a whistleblower, 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.[5] 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.

Common reactions

Ideas about whistleblowing vary widely. Whistleblowers are commonly seen as selfless martyrs for public interest and organizational accountability; others view them as 'tattle tales' or 'snitches', solely pursuing personal glory and fame. 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.[6][7]

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.[8]

Because the majority of cases are very low-profile and receive little or no media attention and because whistleblowers who do report significant misconduct are usually put in some form of danger or persecution, the idea of seeking fame and glory may be less commonly believed.[citation needed]

Persecution of whistleblowers has become a serious issue in many parts of the world. 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; two such examples are the National Whistleblowers Center in the US and Public Concern at Work in the UK. 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.

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In the United States, legal protections vary according to the subject matter of the whistleblowing, and sometimes the state in which the case arises.[9] 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.[10] 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 U.S. law adopted specifically to protect whistleblowers was the Lloyd-La Follette Act of 1912. It guaranteed the right of federal employees to furnish information to the United States Congress. The first U.S. environmental law to include an employee protection was the Water Pollution Control Act of 1972, also called the Clean Water Act. Similar protections were included in subsequent federal environmental laws including the Safe Drinking Water Act (1974), Resource Conservation and Recovery Act (also called the Solid Waste Disposal Act) (1976), Toxic Substances Control Act (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).

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 (EEOC) (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 U.S. False Claims Act (FCA).[11] 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 U.S. 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,[12] 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 were the Office of Special Counsel will uphold the whistleblower's case.

The Military Whistleblower Protection Act[13] protects the right of members of the armed services to communicate with any member of Congress (even if copies of the communication are sent to others).

Legal protection for whistleblowing varies from country to country.[14] In the United Kingdom, the Public Interest Disclosure Act 1998 provides a framework of legal protection for individuals who disclose information so as to expose malpractice and matters of similar concern. In the vernacular, it protects whistleblowers from victimisation and dismissal.

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Ceballos case and the Whistleblower Protection Act of 2007

The U.S. Supreme Court dealt what many considered a major blow to government whistleblowers when, in the case of Garcetti v. Ceballos, 04-5, 547 US 410,[15] it ruled that government employees did not have protection from retaliation in performance evaluations by their employers under the First Amendment of the Constitution if the alleged speech was produced as part of his/her duties.[16] Ceballos did not dispute that his memo was made as part of his official duties. Whistleblowers who want to pursue a federal case under the First Amendment must now always claim the memos and writings made are part not only of the official duty but of a citizen's opinion and discourse of public relevance. This can be done by alleging that the cause for retaliation is not the text of the memo but the ideas surrounding it. In the case of Ceballos he could have argued that his protected speech was his concept of strict adherence to the rule of law.

The free speech protections of the First Amendment have long been used to shield whistleblowers from retaliation by whistleblower attorneys. In response to the Supreme Court decision, the House of Representatives passed H.R. 985, the Whistleblower Protection Act of 2007. President George W. Bush, citing national security concerns, promised to veto the bill should it be enacted into law by Congress. The Senate's version of the Whistleblower Protection Act (S. 274), which has significant bipartisan support, was approved by the Senate Committee on Homeland Security and Governmental Affairs on June 13, 2007. However, it has yet to reach a vote by Senate as a hold has been placed on the bill by Senator Tom Coburn (R-OK).[17] According to the National Whistleblower Center, Coburn's hold on S. 274 has been done to further President Bush's agenda.[18]

California False Claims Act

The California False Claims Act protects whistleblowers from retaliation from their employer under a section entitled: "Section 12653. Employer interference with employee disclosures."[19] Under this section, employers may not make rules that prevent an employee from disclosing information to the government in furtherance of a false claims action, an employer may not discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because he or she has disclosed information to the government.

Conscientious Employee Protection Act (CEPA)

CEPA, New Jersey's whistleblower law, prohibits an employer from taking any retaliatory action against an employee because the employee does any of the following:

  • Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation issued under the law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
  • Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation issued under the law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into quality of patient care; or
  • Objects to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes: is in violation of a law, or a rule or regulation issued under the law, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; is fraudulent or criminal; or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.[20]

"Concerning protection for health care workers who report patient safety information" in Colorado

"Patient safety is of paramount importance in the delivery of health care to Colorado citizens. A patient is at his or her safest when a health care worker has the right to speak out on the patient's behalf without fear of reprisal or retaliation. Health care providers recognize that, in order to deliver the highest quality health care, it is imperative that all health care workers have the right to report patient safety concerns and to advocate for a patient's well being without the risk of disciplinary action or loss of employment."[21]

Notable Whistleblowers

William Marcus set a national precedent as being the first EPA employee to receive protection under the environmental whistleblower statues. [22]

See also

References

  1. ^ Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 727 (Tex. 1990) (Doggett, J., concurring).
  2. ^ 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
  3. ^ 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.
  4. ^ What is a Tax Informant Award?
  5. ^ DOL.gov
  6. ^ Faunce TA Developing and Teaching the Virtue-Ethics Foundations of Healthcare Whistle Blowing Monash Bioethics Review 2004; 23(4): 41-55
  7. ^ Faunce TA and Jefferys S. Whistleblowing and Scientific Misconduct: Renewing Legal and Virtue Ethics Foundations Journal of Medicine and Law 2007, 26 (3): 567-84
  8. ^ 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 (editors), 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
  9. ^ Peer.org
  10. ^ Congressional Record p. S7412; S. Rep. No. 107-146, 107th Cong., 2d Session 19 (2002).
  11. ^ 31 U.S.C. § 3730(h)
  12. ^ 5 U.S.C. § 1221(e)
  13. ^ 10 U.S.C. § 1034
  14. ^ Global Integrity Report
  15. ^ Garcetti v. Ceballos, 04-5, 547 US 410
  16. ^ High Court Trims Whistleblower Rights
  17. ^ Whistleblower Protection Enhancement Act of 2007 - Congresspedia
  18. ^ Take Action Now
  19. ^ California False Claims Act
  20. ^ N.J.S.A. 34:19-3
  21. ^ House Bill 07-1133. By Representative(s) Carroll M., Levy, Soper, Kefalas, Primavera, Carroll T., Cerbo, Frangas, Gagliardi, Kerr A., Labuda, McKinley, Riesberg, Solano, Buescher, Casso, Fischer, Garcia, Green, Jahn, Lambert, Madden, McGihon, Peniston, Roberts, Romanoff, and Todd; also SENATOR(S) Hagedorn, Boyd, Fitz-Gerald, Mitchell S., Shaffer, Tochtrop, Tupa, and Williams. State.co.us
  22. ^ http://www.whistleblowers.org/index.php?option=com_content&task=view&id=860&Itemid=108

Further reading

  • IRS.gov, Whistleblower - Informant Award
  • Project On Government Oversight, Homeland and National Security Whistleblower Protections: The Unfinished Agenda, April, 2006.
  • Project On Government Oversight, Public Employees for Environmental Responsibility and Government Accountability Project, Art of Anonmymous Activism: Serving the Public While Surviving Public Service "Chapter One", 2002. To order full book, go here.
  • Project On Government Oversight, Documents Concerning the Office of Special Counsel.
  • Quentin Dempster, Whistleblowers, Sydney, ABC Books, 1997. ISBN 0-7333-0504-0 [See especially pp. 199–212: 'The Courage of the Whistleblowers']
  • Frais,A Whistleblowing heroes — boon or burden? Bulletin of Medical Ethics, 2001Aug:(170):13-19.
  • Alford, C. Fred (2001). Whistleblowers: Broken Lives and Organizational Power. Cornell University Press. ISBN 0-8014-3841-1.
  • Garrett, Allison, "Auditor Whistle Blowing: The Financial Fraud Detection and Disclosure Act," 17 Seton Hall Legis. J. 91 (1993).
  • Hunt, Geoffrey (20061). The Principle of Complementarity: Freedom of Information, Public Accountability and Whistleblowing in Chapman, R & Hunt, M (eds) Freedom of Information: Perspectives on Open Government in a Theoretical and Practical Context. Ashgate, Aldershot, UK. {{cite book}}: Check date values in: |year= (help)CS1 maint: year (link)
  • Hesch, Joel (2009). Whistleblowing: A guide to government reward programs. Goshen Press. ISBN 978-0977260201.
  • Hunt, Geoffrey (2000). Whistleblowing, Accountability & Ethical Accounting, in. Clinical Risk 6(3): 115-16.
  • Hunt, Geoffrey (1998). 'Whistleblowing', commissioned entry for Encyclopedia of Applied Ethics, (8,000 words). Academic Press, California, USA,.{{cite book}}: CS1 maint: extra punctuation (link)
  • Hunt, Geoffrey (ed) (1998). Whistleblowing in the Social Services: Public Accountability & Professional Practice. Arnold. {{cite book}}: |author= has generic name (help)
  • Hunt, G (ed) (1995). Whistleblowing in the Health Service: Accountability, Law & Professional Practice. Arnold. {{cite book}}: |author= has generic name (help)
  • Johnson, Roberta Ann (2002). Whistleblowing: When It Works—And Why. L. Reinner Publishers. ISBN 978-1588261144.
  • Kohn, Stephen M (2000). Concepts and Procedures in Whistleblower Law. Quorum Books. ISBN 1-56720-354-X.
  • Kohn, Stephen M; Kohn, Michael D; Colapinto, David K. (2004). Whistleblower Law A Guide to Legal Protections for Corporate Employees. Praeger Publishers. ISBN 0-275-98127-4.{{cite book}}: CS1 maint: multiple names: authors list (link)
  • Lauretano, Major Daniel A., "The Military Whistleblower Protection Act and the Military Mental Health Protection Act", Army Law, (Oct) 1998.
  • Miethe, Terance D (1991). Whistleblowing at work : tough choices in exposing fraud, waste, and abuse on the job. Westview Press. ISBN 0-81—33-3549-3.
  • "Sarbanes-Oxley Criminal Whistleblower Provisions & the Workplace: More Than Just Securities Fraud," by Jay P. Lechner & Paul M. Sisco, 80 Florida B. J. 85 (June 2006)
  • 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 (editors), Cornell University Press, 2002
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