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Whistleblowing

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For the 2008 RTÉ drama, see Whistleblower (TV series).

A whistleblower is a person who alleges misconduct. More complex definitions may be used, but the issue is that the whistleblower usually faces reprisal. The 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.

One famous whistleblower is Jeffrey Wigand, who exposed the Big Tobacco scandal, revealing that executives of the companies knew that cigarettes were addictive and approved the addition of carcinogenic ingredients to the cigarettes. Wigand's story was the basis for the 1999 movie The Insider. Another example is Dr. Frederic Whitehurst, who exposed irregularities at the Federal Bureau of Investigation's Crime Lab. In Europe, Paul van Buitenen exposed irregularities in the European Commission.

Overview

Origins of term "whistleblower"

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

Definition of a whistleblower

Most whistleblowers are internal whistleblowers, who report misconduct to 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. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there is a complaint system that offers not just options dictated by the organization, but a choice of options for individuals. See 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.)

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.

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. If disclosure is specifically prohibited by law or executive order, disclosure may be considered treason.[citation needed] However, no whistleblowers have been tried for treason in the United States, and it is not officially treasonous to report illegal conduct by government officials there.[unbalanced opinion?]

Some try to limit the impact of whistleblowing by arguing that "role-prescribed" whistleblowers (e.g. quality control personnel or internal auditors) are not whistleblowers in the traditional sense because they are employed in order to blow whistles.[citation needed] 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.[1] 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.

Many U.S. federal courts do not distinguish between internal and external whistleblowing. For example, in the field of federal environmental whistleblowing, federal courts have protected only internal whistleblowing as a matter of public policy, holding that whistleblower statutes encourage the free flow of information, and that internal whistleblowing helps resolve problems as soon as possible. [unbalanced opinion?]

Common reactions to whistleblowing

Ideas about whistleblowing vary widely. Whistleblowers are commonly seen as selfless martyrs for public interest and organizational accountability; others view them as 'dobbers' or "snitches" (slang), solely pursuing personal glory and fame.

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.(See 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.)

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 wide-spread "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; one such example in the UK is Public Concern at Work. 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 for whistleblowing varies from country to country[2]. 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.

In the United States, legal protections vary according to the subject matter of the whistleblowing, and sometimes the state in which the case arises. 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. (Congressional Record p. S7412; S. Rep. No. 107-146, 107th Cong., 2d Session 19 (2002).) 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 180 days 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 (but here an example of retaliation can be seen, as these anti-discrimination agencies change their areas of discrimination to suit their needs. An area of discrimination in California was if a complaining party had a civil servant relative. The state Department of Fair Employment and Housing quickly called an end to this practice. The state's RALPH Act has also proven to be non-functional.)[unbalanced opinion?] 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). 31 U.S.C. § 3730(h). 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 (5 U.S.C. § 1221(e)), 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 (10 U.S.C. § 1034), 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).

The HOPE Scholarship in Georgia is the only incentive to report corporate, government, or religious crimes. This scholarship provides four years of free tuition to a tech school or University in Georgia for children of whistleblowers or those researching corporate crime.

Whistleblower Protection Act of 2007

The U.S. Supreme Court dealt a major blow to government whistleblowers when, in the case of Garcetti v. Ceballos, 04-5, it ruled that government employees did not have protection from retaliation by their employers under the First Amendment of the Constitution.[3]

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).[4] According to the National Whistleblower Center, Coburn's hold on S. 274 has been done to further President Bush's agenda.[5]

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." [6] 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. N.J.S.A. 34:19-3

Notable whistleblowers

Main article: List of whistleblowers

Whistleblower Week in Washington (WWW)

The week of May 13-19 2007, whistleblowers from all over the country gathered in Washington, D.C., to convince the United States Congress to pass stronger whistleblower protections for both government and private sector workers. Dr. Marsha Coleman-Adebayo, founder of the No FEAR Coalition and No FEAR Institute, served as Chair of the first-ever Whistleblower Week in Washington. The event was coordinated around the fifth anniversary of the May 15, 2002 enactment of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, which is now known as the No FEAR Act. One purpose of the Act is to "require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws." Public Law 107-174. The law came to fruition after Dr. Coleman-Adebayo provided congressional testimony about American companies exposing African miners and their families to vanadium, a deadly substance.

During WWW dozens of nonprofit organizations, whistleblower groups and individual whistleblowers participated in a broad range of activities that included discussion panels, testimony, award ceremonies, a film night and book signing, and workshops in advocacy, stress management, whistleblower law, and mentoring. Doctors from the "Semmelweis Society International" played a leading role in organizing the event, along with the Civil rights whistleblower advocates, the No FEAR Institute. Prominent organizations included the Government Accountability Project (GAP), the National Whistleblower Center, the VA Whistleblower Coalition, the National Security Whistleblowers Coalition, the ACLU, Public Citizen, the Liberty Coalition, and the Association of American Physicians and Surgeons (AAPS). Betsy Combier represented the E-Accountability Foundation. Linda Lewis, chair of Whistleblowers USA, played a special role and noted that "too many very brave whistleblowers were present to adequately honor their accomplishments and their contributions to the conference." Senator Charles Grassley saluted the group, and called on the White House to hold a rose garden ceremony to honor whistleblowers. The group plans to make this an annual event.[7]

See also

Look up whistleblowing in Wiktionary, the free dictionary.

Notes

  1. ^ Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 727 (Tex. 1990) (Doggett, J., concurring).
  2. ^ Global Integrity Report
  3. ^ High Court Trims Whistleblower Rights
  4. ^ Whistleblower Protection Enhancement Act of 2007 - Congresspedia
  5. ^ Take Action Now
  6. ^ California False Claims Act
  7. ^ http://www.w3conference.org/

Major Daniel A. Lauretano, The Military Whistleblower Protection Act and the Military Mental Health Protection Act, ARMY LAW., (Oct) 1998.==Resources==

  • Tax Whistleblower Reward Program, IRS 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.
  • 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)
  • 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)
  • 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)
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