Category Archives: Whistleblowing

Whistleblower Paradox: Laws Improve As Prosecutions Mount – Major Expansion of Federal Safeguards While States Steadily Strengthen Statutes

Source: Public Employees for Environmental Responsibility (PEER), Press Release, July 18, 2013

As the U.S government pursues Edward Snowden around the globe, back home U.S. whistleblower protection laws are significantly expanding, according to a review by Public Employees for Environmental Responsibility (PEER). In the past year alone, federal civil servants won enhanced whistleblower sanctions while employees of federal contractors received powerful new safeguards. And at the state level, several states toughened laws shielding public employees and contract workers in 2013…. In its detailed analysis (displayed on its website) of each state’s law, PEER ranks each on 32 factors affecting the scope of coverage, usefulness and strength of remedies. By these measures, California, the District of Columbia and Tennessee have the strongest whistleblower laws while Georgia, Indiana and South Dakota have the weakest….
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 state whistleblower changes from 2012
See summary of federal Whistleblower Protection Enhancement Act
Read the new federal contractor employee law

Survey of Federal Whistleblower and Anti-Retaliation Laws

Source: Jon O. Shimabukuro, L. Paige Whitaker, Emily E. Roberts, Congressional Research Service, CRS Report for Congress, R43045, April 22, 2013

This report provides an overview of federal whistleblower and anti-retaliation laws. In general, these laws protect employees who report misconduct by their employers or who engage in various protected activities, such as participating in an investigation or filing a complaint. In recent years, Congress has expanded employee protections for a variety of private-sector workers. Eleven of the forty laws reviewed in this report were enacted after 1999. Among these laws are the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The report focuses on key aspects of the federal whistleblower and anti-retaliation laws. For each law, the report summarizes the activities that are protected, how the law’s protections are enforced, whether the law provides a private right of action, the remedies prescribed by the law, and the year the law’s whistleblower or anti-retaliation provisions were adopted and amended. With regard to amendment dates, the report identifies only dates associated with substantive amendments. For enactments after 2001, the report provides information on congressional sponsorship and votes.

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.
Related:
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).
Related:
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