CHECKLIST FOR EFFECTIVE WHISTLEBLOWER PROTECTION LAWS
Tom Devine, Legal Director, Government Accountability Project
The Government Accountability Project (GAP) is a non-
While whistleblower protection laws are increasingly popular, in many cases the rights
have been largely symbolic and therefore counterproductive. Employees have risked
retaliation thinking they had genuine protection, when in reality there was no realistic
chance they could maintain their careers. In those instances, acting on rights contained
in whistleblower laws has meant the near-
GAP labels token laws as "cardboard shields," because anyone relying on them is sure to die professionally. We view genuine whistleblower laws as "metal shields," behind which a employee's career has a fighting chance to survive. The checklist of 21 requirements below reflects GAP's 23 years of lessons learned on the difference. All the minimum concepts exist in various employee protection statutes currently on the books.
I. SCOPE OF COVERAGE
1. "No loopholes" protected speech. Protected whistleblowing should cover "any" disclosure that would be accepted in a legal forum as evidence of significant misconduct or would assist in carrying out legitimate law enforcement functions. There can be no loopholes for form, context or audience, unless release of the information is specifically
prohibited by statute. In that circumstance, disclosures should still be protected if made to representatives of institutional leadership, or to designated law enforcement or legislative offices.
2. Realistic scope of subject matter. Whistleblower laws should cover disclosures of any illegality, gross waste, mismanagement, abuse of authority, substantial and specific danger to public health or safety, as well as any other information that assists in implementing or enforcing the law or achieving its purpose.
3. Duty to disclose illegality. This provision helps switch the whistleblowing context from a personal initiative for conflict, to a public service duty to bear witness.
4. Right not to violate the law. This provision is fundamental to stop faits-
would not have required illegality.
5. Protection for the full scope of activity that leads to harassment. The law should cover all common scenarios that could have a chilling effect on responsible exercise of free speech rights. Representative scenarios include employees who are perceived as whistleblowers, even if mistaken (to guard against guilt by association), and employees who are "about to" make a disclosure (to preclude preemptive strikes to circumvent statutory protection). These indirect contexts often can have the most significant potential to lock in secrecy by silencing employees.
6. Coverage for all employees performing public service functions. Coverage should extend to all employees who are challenging betrayals of the public trust, whether the employer is public or private. Public whistleblower statutes should protect all who are paid with taxpayer funds to carry out government functions, including employees of government contractors or corporations.
7. Coverage for confidential disclosures. To maximize the flow of information necessary for accountability, protected channels must be available for those who choose to make anonymous disclosures. As the WPA sponsors recognized, denying this option creates a severe chilling effect.
8. Protection for the full scope of harassment. The forms of harassment are limited only by the imagination. As a result, it is necessary to ban any discrimination taken because of protected activity, whether active such as termination, or passive such as refusal to promote or provide training. The prohibition must cover recommendations as well as the official act of discrimination, to guard against managers who "don't want to know" why subordinates have targeted employees for an action.
9. Anti-
10. Prominent posting of rights. As a practical matter whistleblowers are not protected by any law, if they do not know it exists. Whistleblower rights, along with the duty to disclose illegality, must be posted prominently in any workplace.
II. FORUM
The setting to adjudicate a whistleblower's rights must be free from institutionalized conflict of interest. The records of administrative boards and grievances have been so unfavorable that as a rule, laws adjudicated in these settings are Trojan horses. Two settings have a track record of giving whistleblowers a fair day in court.
11. Right to a jury trial. This option institutionalizes normal judicial due process rights, the same available for citizens generally who are aggrieved by illegality or abuse of power. Most significant, it means that whistleblowers will be judged by a jury of peers from the citizens whom they purport to defend.
12. Option for Alternative Disputes Resolution with an arbitrator selected by
mutual consent. Arbitration can be an expedited, less costly forum for whistleblowers,
if the decision-
III. RULES TO PREVAIL
13. Modern burdens of proof. The federal Whistleblower Protection Act of 1989 overhauled antiquated, unreasonable burdens of proof that had made it hopelessly unrealistic for whistleblowers to prevail when defending their rights.
The current standard, which since 1989 has been adopted consistently in federal laws, is that a whistleblower established a prima facie case of violation by establishing through a preponderance of the evidence that protected conduct was a "contributing factor" in challenged discrimination. The discrimination does not have to involve retaliation, which could require personal hostility, but only need occur "because of" the whistleblowing. Once a prima facie case has been made, the burden of proof shifts to the employer to demonstrate by clear and convincing evidence that it would have taken the same action for independent, legitimate reasons in the absence of protected activity.
Since the federal government switched the burden of proof in whistleblower laws,
the rate to prevail on the merits has increased from 1-
14. Realistic statute of limitations. Although some laws require employees to
act within 30-
IV. RELIEF FOR WHISTLEBLOWERS WHO WIN
15. Full scope of consequences. If a whistleblower prevails, the relief must be comprehensive to cover all the direct, indirect, and future consequences of the reprisal.
16. Interim relief. Even after winning a hearing or trial, an unemployed whistleblower could go bankrupt waiting for completion of an appeals process that frequently drags out for years. Relief should be awarded during the interim for employees who prevail after their day in court. Awards of back salary would be conditional, to be returned if the initial decision is overturned subsequently.
17. Attorney fees. Attorney fees should be available for all who substantially prevail. Otherwise whistleblowers could not afford to assert their rights, or even to win. The fees should be awarded if the whistleblower obtains the relief sought, whether or not it is directly from the legal order issued in the litigation. Otherwise, employers can and have unilaterally surrendered outside the scope of the forum and avoided fees by declaring that the whistleblower's lawsuit was irrelevant to the result. Employees can be ruined by that type victory, since attorney fees not uncommonly reach five to six figures.
18. Transfer preference. It is unrealistic to expect a whistleblower to go back to work for a boss whom he or she ha just defeated in a lawsuit. In order to prevent repetitive reprisals that cancel the law's impact, those who prevail must have a strong transfer preference for any realistic chance at a fresh start after winning.
19. Personal accountability for wrongdoers. To deter repetitive violations, it also is indispensible that those responsible for whistleblower reprisal must be held accountable. Otherwise, managers have nothing to lose by doing the dirty work of harassment. The worst that will happen is that they won't get away with it, and they may well be rewarded informally for trying. The most effective option to prevent retaliation is personally liability for punitive damages by those found responsible for violating whistleblower laws. Another option is to allow whistleblowers to counterclaim for disciplinary action, including termination. The most superficial is to make compliance with the whistleblower law a critical element in every manager's performance appraisal, and for decisionmakers in reprisal cases to refer responsible officials for investigation to determine if sanctions are appropriate for violating this element.
20. Laws that are additive, not substitutive. Because of some recent court decisions,
legislatures that pass whistleblower laws must specify they are not substitutes that
cancel out pre-
V. MAKING A DIFFERENCE
21. Action against wrongdoing exposed by whistleblowing disclosures. Federal
studies repeatedly have confirmed that the primary reason would-