Category Archives: Whistleblowing

Not My Job: Determining the Bounds of Public Employee Protected Speech

Source: Stephen Allred, Labor Law Journal, Vol. 65 no. 4, Winter 2014
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… This article reviews the Supreme Court’s rulings in public employee free speech cases, discusses the significant departure from precedent that Garcetti made to those cases, summarizes the Court’s most recent ruling in Lane, and argues that the Court should return to the broader standard the Court originally announce in Pickering. Were the Court to do so, it would significantly reduce the confusion the Court has created about whether public employees can speak in court – or in other for a – on matters that derive from their ordinary job responsibilities. …

Whistleblower Laws: State or Federal Protection?

Source: Rebecca Goza, Lee Tyner, Jennifer Barger Johnson, Journal of Workplace Rights, Vol. 17, Nos. 3 – 4, 2013-2014
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From the abstract:
This article will discuss the unique complexities associated with whistleblower laws and programs in the United States. It will focus on discussion of the myriad of current federal and state laws created because of concern over risks in this area. The goal of this article is to compare state and federal legislation, for the purpose of identifying the states that offer the best protection to whistleblowers as well as identifying any states that offer better protection to whistleblowers than federal law currently provides.

Whistleblowing in Organizations: A Logit analysis of Litigated Cases

Source: Yvette P. Lopez, Helen Lavan, Marsha Katz, Journal of Workplace Rights, Vol. 17, Nos. 3 – 4, 2013-2014
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From the abstract:
This study examines the issue of whistleblowing in organizations. As suggested by the literature, a variety of legal protections and issues were examined to predict case outcomes in future litigation by individuals who engage in the act of whistleblowing. We used chi square analyses and a logit model to predict when an individual plaintiff would prevail, and the results indicate that case characteristics including discrimination laws, safety behavior, sexual harassment, and refusal to participate in illegal activities are significant predictors. The odds of a finding in favor of the employee increase with the presence of these particular case characteristics. Our examination uses litigated cases as the source of data, which allows for a rich analysis of occurrences relating to whistleblowing in a large number of organizations. The results of this study suggest that individuals increase their chances for successful litigation when these specific issues of discrimination laws, safety behavior, sexual harassment, and refusal to participate in illegal activities are involved in the whistleblowing occurrence.

Whistleblowers/Eco-Heroes – New Tools For Embattled Public Servants

Source: Public Employees for Environmental Responsibility (PEER), December 2014

From the press release:
A unique new online legal help center for federal, state and contract employees confronting whistleblower-related issues was unveiled today by Public Employees for Environmental Responsibility (PEER). Besides proving breakdowns of the scope and strength of whistleblower-related laws, the site enables public employees to schedule free consultations with PEER attorneys….

The new web center provides breakdowns on topics such as –
Recent changes in federal whistleblower law;
How new federal scientific integrity policies work;
New whistleblower protections for employees of federal contractors, subcontractors and grantees;
The evolving and expanding whistleblower responsibilities of Inspectors General;
Whistleblower protections in environmental laws such as the Clean Air Act and Superfund; and
The False Claims Act and whistleblower bounty programs.

The coverage of whistleblower laws, especially at the federal level, has grown in recent years. The importance of these statutory whistleblower rights has been magnified by a 2006 U.S. Supreme Court decision largely stripping government workers of on-the-job First Amendment free speech protections.
Besides federal law, the PEER website displays a detailed analysis and comparison of whistleblower laws in all 50 states and the District of Columbia. The site specifies which states cover what disclosures, under which circumstances and with what remedies….
Examine new legal resource center for public agency and university scientists
Look at diminished First Amendment protection for government workers
See rating of each state whistleblower law
Revisit the case of Chief Chambers of the U.S. Park Police

Whistle-Blowing: Individual and Organizational Determinants of the Decision to Report Wrongdoing in the Federal Government

Source: Cecilia Florencia Lavena, American Review of Public Administration, Published online before print: June 26, 2014
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From the abstract:
The act of blowing the whistle on wrongdoing poses an ethical dilemma to the individual, the organization, and society. To help identify the key individual and organizational determinants that encourage or prohibit whistle-blowing in the U.S. federal government, this article presents a logistic regression analysis of survey data collected by the Merit Systems Protection Board, covering 36,926 federal employees from 24 agencies. Findings suggest that, although whistle-blowing is a rare event within most federal agencies, its likelihood is positively associated with norm-based and affective work motives, but negatively associated with several key indicators of organizational culture, including perceptions of respect and openness, cooperativeness and flexibility in the work setting, and fair treatment and trust in supervisors. This indicates intrinsic individual motives, together with organizational culture and leadership, should be taken into account when developing and sustaining policies to promote ethical behavior and responsible public service in the federal government.

Whistleblower Protection Program: Opportunities Exist for OSHA and DOT to Strengthen Collaborative Mechanisms

Source: U.S. Government Accountability Office (GAO), GAO-14-286, March 19, 2014

From the summary:
The Occupational Safety and Health Administration (OSHA) has taken steps to include auto industry employees in its Whistleblower Protection Program and has coordinated with the Department of Transportation (DOT) on whistleblower issues, but interagency collaborative mechanisms could be strengthened. Among other steps, OSHA is developing procedures for how it will investigate claims from auto employees and estimates most of its efforts will be completed in 2014. OSHA documents its collaboration with DOT’s component agencies on whistleblower protections by developing memorandums of agreements (MOA), and currently MOAs cover aviation and rail employees; the agencies are considering developing MOAs to cover other transportation sectors such as commercial motor-carrier employees. Officials from both OSHA and DOT believe it is important to identify or refer potential claims of retaliation and safety violations to each other. In September 2012, GAO concluded that collaboration is critical when meaningful results that the federal government seeks to achieve require the coordinated efforts of more than one federal agency. Among others, key practices of effective collaboration include clearly delineating roles and responsibilities and monitoring progress. OSHA and DOT officials agree that following GAO’s key practices would be beneficial. However, the agencies have an opportunity to strengthen current and future MOAs by clearly delineating roles and responsibilities, and determining how the agencies’ efforts will be monitored and evaluated. For example, the current MOAs do not clearly define agency roles and responsibilities with respect to developing training on whistleblower issues and regional coordination. Defining such responsibilities could help ensure beneficial training occurs and the agencies avoid miscommunication and inconsistent whistleblower processes involving referrals between the agencies’ regional offices. Additionally, since the agencies have not developed or documented how they would monitor referrals, neither OSHA nor DOT can assess whether the referral process is working as intended. By monitoring and evaluating the outcomes of referrals, the agencies would have more assurance that they are addressing the safety violations and claims of retaliation raised by transportation-related employees.

The number of transportation-related whistleblower claims filed with OSHA has increased in the last 6 years—from 508 in fiscal year 2008 to 821 in fiscal year 2013—and GAO’s interviews with transportation industry stakeholders identified several factors that might affect those numbers and how they could be interpreted. These factors include multiple avenues to address safety issues, employee awareness of whistleblower protections, and statutory whistleblower provisions, among others. The identified factors are not mutually exclusive and could either increase or decrease the number of whistleblower claims. For example, officials representing three transportation modes noted that multiple safety-reporting mechanisms, such as anonymous hotlines, can indirectly affect whether employees file whistleblower claims since employees are less likely to face retaliation when reporting safety issues anonymously. Regarding statutory whistleblower provisions, the statute covering rail employees provides the largest number of protected activities, and this protection, according to rail industry officials, has enabled rail employees to file more whistleblower claims than other transportation employees.

An Overview of U.S. Whistleblowing Law

Source: Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law Research Paper No. 2013-38, October 22, 2013

From the abstract:
Although efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation.

The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.” Ironically, in this fight to extend protections, Congress has often found itself at odds with federal judges who have repeatedly narrowed the scope of whistleblower protections and raised numerous hurdles whistleblowers.

The Whistleblower Protection Act Burdens of Proof: Ground Rules for Credible Free Speech Rights

Source: Thomas Devine, E-Journal of International and Comparative Labour Studies, Volume 2, No. 3 September-October 2013

From the abstract:
As the ground-rule for how much evidence determines what outcome, legal burdens of proof are unsurpassed for the impact of whistleblower laws in actually protecting rights they purport to shield. The U.S. Whistleblower Protection Act (“WPA”) has pioneered modern burdens for fair rules on what it takes to win, or lose. Its standard governs all 13 U.S. corporate whistleblower statutes passed since 1989, covering nearly the entire private sector. It also has been adopted by Intergovernmental Organizations ranging from the United Nations to the World Bank. The WPA burdens of proof consist of three parts: 1) eliminating the test for hostile motives to prove a violation of rights, instead only requiring a causal link between protected speech and the challenged personnel action; 2) replacing the “predominant factor” requirement for the whistleblower’s burden to prove a prima facie case, with the more realistic “contributing factor” test, essentially a relevance standard; and 3) replacing the “preponderance of the evidence” standard, only requiring 50% plus of evidence, with a “clear and convincing evidence” standard, requiring 70-80%, for the employer’s reverse burden of proof in an affirmative defense that it would have taken the same action for legitimate reasons in the absence of whistleblowing. Currently these legal burdens of proof are not in any other nation’s whistleblower laws, most of which are silent on the quantum of evidence. The issue should be carefully considered in drafting new whistleblower laws. Its omission could turn well-intentioned laws to protect freedom of speech into Trojan horses.

Securing the Right to a Safe and Healthy Workplace: Improve State Laws to Protect Workers

Source: Katie Weatherford, Center for Effective Government, October 2013

From the press release:
A study released today by the Center for Effective Government calls for better protections for workers who report health and safety hazards on the job. … As another Center for Effective Government study released in August reported, while the number of workplaces in the U.S. doubled between 1981 and 2011, the number of OSHA inspectors in 2011 was lower than in 1981. … As a result, it is even more important for workers to be the eyes and ears of OSHA and report health and safety problems in factories, laboratories, construction sites, and other workplaces. ” “But too often, when workers raise concerns about health and safety hazards on the job, employers retaliate with reduced hours or dismissal, even though doing so is clearly illegal,” noted Katie Weatherford, regulatory policy analyst at the Center for Effective Government and the author of the report. …
What’s At Stake: Austerity Budgets Threaten Worker Health and Safety
Source: Nick Schwellenbach, Center for Effective Government, August 2013

Why Nurses Need Whistleblower Protection

Source: Mary Beth Thomas, Jim William, Journal of Nursing Regulation, Vol. 2 no. 2, October 2012
(subscription required)

From the abstract:
Boards of nursing and professional associations have a strong belief that nursing practice must emphasize patient advocacy and the importance of the nurse’s role in the protection and safety of patients. Though nurses are educated about their responsibilities regarding advocacy and safety, many have difficulty navigating workplace impediments that restrict their duty to advocate for patients. This was not the issue for two Winkler County, Texas, nurses who reported concerns about a physician’s dangerous medical practice to the Texas Board of Medicine. Not only were the nurses fired from their long-standing jobs for reporting the physician’s unsafe practice, they were also criminally indicted for a third-degree felony. This article reviews the case of these nurses and the subsequent legislation initiated by the Texas Nurses Association and supported by the Texas Board of Nursing to prevent such occurrences in the future.