Robert G. Vaughn
The whistleblower provision of the Civil Service Reform Act of 1978, known as the Reform Act (P.L. 95-454, 92 Stat. 111) is the major piece of legislation protecting federal employees who disclose information (blow the whistle) on government misconduct or waste. In his presidential campaign, Jimmy Carter had promised to push for legislation to protect federal employee whistleblowers from retaliation. Carter made good on his campaign promise, and the provision he proposed received bipartisan support in Congress. In 1989 the Whistleblower Protection Act, known as the WPA (P.L. 101-12, 103 Stat. 16), strengthened the protections provided in the Reform Act.
These whistleblower protection laws prohibit reprisal against federal employees who "reasonably" believe that their disclosures show "a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a specific and substantial danger to public health and safety." Disclosures can be made to any person, and internal disclosure (within the government agency) is not required. Disclosures are only protected if "not specifically prohibited by law and if such information is not specifically required by an Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs." These prohibited disclosures, however, can be made to the inspector generals of government agencies or to the Office of Special Counsel, an office created in part to represent the interests of whistleblowers.
These laws create a structure of administrative enforcement. Whistleblowers who have been subjected to certain personnel actions, such as removal, suspension, transfer, reassignment, or other similar actions taken as punishment, can raise whistleblowing as a defense before the United States Merit Systems Protection Board, a type of administrative court. Whistleblowers who were subject to personnel actions not appealable to the board have to rely either on the Office of Special Counsel to bring their claims before the board or may commence an independent right of action before the board. This independent right of action allows the board to address only employees' whistleblower claims. The decisions of the board are reviewed by the United States Court of Appeals for the Federal Circuit.
Whistleblowers are entitled to a number of remedies, including back pay and compensatory damages. These laws permit the Office of Special Counsel to commence disciplinary actions against federal officials who have retaliated against whistleblowers. Under this authority, a number of individual federal officials have been dismissed or suspended. In addition, the Special Counsel may require the head of an agency to respond to the allegations made by a whistleblower.
The WPA strengthened whistleblower protection. Perhaps the most important change eases the burden on federal employees of proving they have been subjected to a reprisal. Employees need only show that protected disclosures were a "contributing factor" to the personnel action alleged to have been taken in reprisal. If an employee can demonstrate this connection, the agency must show by "clear and convincing evidence" that it would have taken the same action had the employee not made a disclosure protected by law. The WPA also rejects a number of decisions of the U.S. Court of Appeals for the Federal Circuit that Congress believed were unduly restrictive interpretations of the law.
WHISTLEBLOWING AS CIVIC DUTY
One of the most important effects of these whistleblower laws has been to legitimize whistleblowing. Whistleblowing is no longer seen as an act of disloyalty but as the fulfillment of civic responsibility. Whistleblowers protect society not only from misconduct and waste but also from unsafe and dangerous conditions.
At the time of the passage of the Reform Act, whistleblowing was a scorned activity often officially punished. Today, Congress approves of whistleblowing in the strongest terms and has acted often to protect whistleblowers from reprisal. Dozens of state statutes, many modeled after the Reform Act or the WPA, protect whistleblowers in both the public sector and private sector.
PROTECTION IN THE PRIVATE SECTOR
Federal legislation protects whistleblowers who work in the private sector and who report violations of a variety of federal health, safety, and environmental laws. Also, in response to fraud and misconduct by large corporations and the accountants and attorneys representing them, Congress included whistleblower protection in the Sarbanes-Oxley Act of 2002 (P.L. 107-204, 116 Stat. 802), a law addressing this misconduct. Federal whistleblower protections now cover millions of private sector employees.
The private sector provisions are administrated by the United States Department of Labor. The whistleblower provision of the Sarbanes-Oxley Act permits private-sector whistleblowers to bring an action in federal district court if the Department of Labor does not resolve their claims of reprisal in a timely manner. In those district court actions, whistleblowers are entitled to receive a trial by jury.
Like public sector whistleblowers, those in the private sector also support the public's right to know about the operations of government. The disclosures by private-sector whistleblowers often concern the misconduct of government officials as well as their employers. Disclosures concerning health or safety or the environment, likewise, may identify weaknesses in government administration or regulation. In these ways, protections of private-sector whistleblowers support the freedom of expression and the right to know as do the protections of public employees.
EXPOSING CORRUPTION AND FRAUD
Public and private sector employees are important sources of information about the corruption of government officials and fraud regarding public funds. The federal False Claims Act, after amendments in 1986 (P.L. 99-562, 100 Stat. 3153), has encouraged disclosures by both private and public employees that have led to the recovery of billions of dollars fraudulently obtained from the government. The False Claims Act contains its own whistleblower provision to protect those employees who seek to use the act to challenge fraud and misconduct. The act encourages whistleblowing not only through whistleblower protection but also by permitting them in some circumstances to receive a percentage of the funds recovered on behalf of the government.
More recently there has been a growing international consensus for whistleblower protection. Many countries in Europe, Asia, Africa, and South America have adopted provisions applying whistleblower protection to large segments of society. Several international instruments, including multinational treaties, regulations of international institutions, and codes of conduct now include protections of whistleblowers.
Whistleblower protection, like freedom of information laws and other open government provisions, supports the right of freedom of expression. This right is the foundation of democratic accountability and of democratic government.
See also: CIVIL SERVICE REFORM ACT; FREEDOM OF INFORMATION ACT.
Devine, Thomas. "The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent." Administrative Law Review 35 (1999): 53179.
Vaughn, Robert G. "Statutory Protection of Whistleblowers in the Federal Executive Branch." University of Illinois Law Review (1982): 61567.
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