Category Archives: Whistleblowing

Whistleblowers in the Workplace: The Government Employee's "Official Duty" to Tell the Truth

Source: Parker Graham, Southern Methodist University Law Review, Summer 2012

For the twenty-two million Americans employed by federal, state, and local governments, free speech on the job ended in 2006. The Supreme Court’s watershed ruling in Garcetti v. Ceballos created a categorical rule that removes First Amendment protections when public employees speak pursuant to their “official duties.” From university professors to police officers to everyday civil servants, the choice became as simple as “watch your mouth or relinquish your job.” The ruling was widely reviled as a step backward in the Court’s free speech jurisprudence. Even the Court acknowledged that Garcetti created uncertain and sweeping effects on academic freedom, political expression, and employer retaliation that were “not fully accounted for.” Yet rather than join the extensive scholarship on Garcetti’s effects, this Comment offers a consistent rule for applying it. Worse than Garcetti’s harsh consequences is the uncertainty caused by rules that arbitrarily define the boundaries of free speech. That much is clear from the courts below. At bottom, consistency and clarity are key to protecting employee free speech….

This Comment clarifies the scope of official duties under Garcetti when a government whistleblower suffers employer retaliation for filing a report and refusing to retract it. Section I is a historical overview of First Amendment rights for government employees. Section II describes the confusion under current law resulting from the D.C. and Second Circuit split. Section III answers two central questions raised in the whistleblower context. First, how should courts determine whether an employee’s report or complaint was made pursuant to his official duties? Asking what an employee was “paid to perform” is a more effective framework than the Second Circuit’s unworkable civilian analog test. Second, precisely which duties arise in the circumstance of government whistleblowers? Particularly as plaintiffs have argued to escape Garcetti, do government employees have an official duty “to tell the truth” and a distinct civilian duty “to refuse to lie”? To the contrary, government employees have only an official duty to tell the truth. Courts must choose between faithfully applying the categorical Garcetti rule and crafting permissive loopholes. Regardless of Garcetti’s policy pitfalls, this Comment provides a framework for consistently applying the Court’s holding. Clarity is paramount for the nation’s twenty-two million government workers, who must know where their First Amendment rights begin and where they end.

State Whistleblower Laws Steadily Strengthening — Cash-Strapped States Look to Whistleblowers to Pinpoint Waste and Fraud

Source: Public Employees for Environmental Responsibility (PEER), Press Release, August 9, 2012

Across the nation, states continue to broaden and improve legal protections for public employees who blow the whistle on waste, fraud and abuse, according to a new analysis released today by Public Employees for Environmental Responsibility (PEER). So far in 2012, five states have toughened whistleblower laws for public employees and contract workers.

In the prior two years, another 20 states enacted stronger whistleblower laws. Since 2006, when PEER first rated state disclosure laws, nearly half of all states have widened or enhanced their whistleblower laws. No state has weakened or repealed a whistleblower law.
See also:
See which states have the strongest and weakest whistleblower laws
Look at breakdown of whistleblower protection provisions among states
Find out about the whistleblower law in your state (click on the map)
Scan changes from the year prior

Whistleblower Retaliation in the Public Sector

Source: Katie Lee and Brian Kleiner, Public Personnel Management, Vol. 40 no. 4, Winter 2011
(subscription required) (scroll down)

“Blowing the whistle” has never been an easy decision whether an employee is from the private sector of the public sector. Laws to protect employees from the private sector had long been established while whistleblowers from the public sector may have been scrutinized. After the media aired many high profile cases in which federal whistleblowers go through a series of retaliations by their supervisors, laws have been introduced to protect government whistleblowers as well. Although these laws have significantly given courage to whistleblowers, it is not without its flaws. There are still agencies that ignore these laws or find ways around these laws in order to cover up some of their own mistakes. The government must continue to find ways to encourage more people to step up and expose wrongdoings for the good of society.

States Strengthening Their Whistleblower Laws — Red and Blue States See Whistleblowers as Tool for Cutting Waste and Fraud

Source: Public Employees for Environmental Responsibility (PEER), Press Release, August 17, 2011

Across the country, states are steadily expanding and improving their legal protections for state employees who blow the whistle on waste, fraud and abuse, according to a new analysis released today by Public Employees for Environmental Responsibility (PEER). In 2010, ten states measurably strengthened whistleblower protections while in 2011 another ten states have already done so.
See which states have the strongest and weakest whistleblower laws
Look at breakdown of whistleblower protection provisions among states
Find out about the whistleblower law in your state (click on the map)

Examine summary of state changes during last 12 months

Scan changes from the year prior

Labor Department Whiffs On Whistleblower Reform — Internal Review Prescribes Mish-Mash of Minor Repairs, Avoids Structural Defects

Source: Public Employees for Environmental Responsibility, Press Release, January 18, 2011

A long-awaited internal review of the troubled U.S. Labor Department whistleblower protection program essentially endorses the status quo despite a series of scathing reports by government and outside analysts, according to Public Employees for Environmental Responsibility (PEER). According to PEER, which released a copy today, the internal review does not even consider major changes urged by Congress and others, most prominently that the whistleblower program become autonomous rather than remain a collateral function buried inside the Occupational Safety & Health Administration (OSHA).
See the final OSHA top-to-bottom report
Compare the blistering GAO and IG reports
Look at the aborted plan to break up the whistleblower program
View a Congressional call for a study of autonomous whistleblower program
Read Secretary Solis response to PEER letter calling for a separate office
Trace the explosion in Labor’s whistleblower jurisdiction

Inspector General Rips OSHA Whistleblower Program

Source: Public Employees for Environmental Responsibility, Press Release, October 4, 2010

The federal program to protect private sector whistleblowers does an appallingly poor job, according to a new report from the Labor Department Office of Inspector General. The vast majority of federal investigations missed basic steps, such as interviewing witnesses, and as a result whistleblowers who are fired or blackballed after reporting violations rarely win restoration.

OSHA is charged with enforcing the whistleblower protections of 19 laws covering approximately 200 million U.S. workers. These laws cover everything from job safety to pollution control to corporate fraud.

The new Inspector General report follows a scathing Government Accountability Office review of the whistleblower program administered by the Occupational Safety & Health Administration (OSHA) issued just last month. The two reports are bookends of a devastating, top-to-bottom critique and echo calls by Public Employees for Environmental Responsibility (PEER) and other reform groups to remove the whistleblower program out from under inept OSHA management into its own bureau.
See also:
View the PEER lawsuit seeking OSHA documents
See how OSHA retaliates against its own whistleblowers

Broad Whistleblower Protection Under The Federal Stimulus Law

Source: Jyotin Hamid and Mary Beth Hogan, New York Law Journal, May 26, 2009

In response to concerns about waste of stimulus funds, the act includes a broad employee whistleblower provision, §1553, which provides for a private right of action for employees who claim that they have been retaliated against for making certain complaints about their employers’ handling of stimulus funds. This article provides an overview of the features of §1553, highlights several aspects of the provision that are broader than other whistleblower statutes with which employers may be more familiar and examines a number of important, unanswered questions about how the law will be interpreted and applied.

States Strengthen Whistleblower Protection Laws

Source: Public Employees for Environmental Responsibility, Press Release, April 16, 2009

States Moving Past Federal Government in Safeguarding Civil Servant Disclosures

Many states are adopting new laws to protect their civil servants who report waste, fraud and abuse, according to a legal analysis released today by Public Employees for Environmental Responsibility (PEER). While the level of whistleblower protection varies widely across the country, several states are enacting safeguards that surpass those afforded to federal employees.

PEER has completed a detailed analysis of every state’s laws, ranking each on 32 factors affecting the scope of coverage, usefulness and remedies.
See also:
See which states have the strongest and weakest whistleblower laws
Look at breakdown of whistleblower protection provisions among states
View highlights of recent state legislation
Find out about the whistleblower law in your state

Constraining Public Employee Speech: Government’s Control of its Workers’ Speech to Protect its Own Expression

Source: Helen Norton, Duke Law Journal, Vol. 59, 2009

From the abstract:
This Article identifies a key doctrinal shift in courts’ treatment of public employees’ First Amendment claims – a shift that imperils the public’s interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer’s interest in efficiently providing public services. In contrast, courts now increasingly focus on – and defer to – government’s claim to control its workers’ expression to protect its own speech.

More specifically, courts increasingly permit government to control its employees’ expression while at work, characterizing such speech as the government’s own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public’s ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking “as employees” even when away from work, deferring to government’s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts’ reasoning is the premise that a public entity’s employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts’ unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.

To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers’ First Amendment claims in a growing number of cases that undermine workers’ free speech rights as well as the public’s interest in transparent government. More careful attention to what it is that government seeks to communicate – and whether that message is actually impaired by employee speech — can help us capture and accommodate government’s expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government’s expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government’s legitimate speech.

Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency

Source: Government Accountability Office, GAO-09-106, January 27, 2009

From the summary:
Labor lacks reliable information on processing times and, as a result, cannot accurately report how long it takes to investigate and close a case or decide on certain appeals. OSHA does not have an effective mechanism to ensure that the data are accurately recorded in its database, and GAO’s file reviews revealed that the key dates are often inaccurately recorded in the database or cannot be verified due to a lack of supporting documentation. For example, in one region visited, none of the case closed dates matched the documentation in case files. At the appeals level, the reliability of information on the processing times is mixed. Timeliness data at the OALJ level are reliable, and the OALJ completed appealed cases in an average of about 9 months in fiscal year 2007. In contrast, ARB data are unreliable, and the agency lacks sufficient oversight of data quality. GAO’s file review found that ARB processing times ranged from 30 days to over 5 years. At all levels of the whistleblower program, GAO found that increasing caseloads, case complexity, and accommodating requests from the parties’ legal counsel affect case processing times. Whistleblowers received a favorable outcome in a minority of cases that were closed in fiscal year 2007, both at initial decision and on appeal, but the actual proportion may be somewhat lower than Labor’s data show. OSHA’s data show that whistleblowers received a favorable outcome in 21 percent of complaints–nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA. However, GAO found several problems in the way settlements were being recorded in OSHA’s database, and a review of settlement agreements suggests that the proportion of cases found to have merit may actually be about 19 percent. As with investigations, when whistleblower complaints were appealed, decisions favored the whistleblower in a minority of the cases–one-third or less of outcomes favored the whistleblower. With respect to administering the whistleblower program, OSHA faces two key challenges–it lacks a mechanism to adequately ensure the quality and consistency of investigations, and many investigators said they lack certain resources they need to do their jobs, including equipment, training, and legal assistance. OSHA does not routinely conduct independent audits of the program to ensure consistent application of its policies and procedures. OSHA’s new field audit program has begun to address this need but is lacking in several key areas. For example, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program. Moreover, OSHA is challenged to ensure that investigators in all regions have the resources they need to address their large and complex caseloads. OSHA has not established minimum equipment standards for its investigators, and nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs. Furthermore, investigators often cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.