Reforming Whistleblower Protection Laws
In the past several years, we have witnessed the uncomfortable but indisputable undermining of federal whistleblower protections by the Executive Branch and members of Congress. The public has most recently witnessed this sobering truth in the impeachment of Donald Trump and the administration’s response to the COVID-19 pandemic. Just as the administration intends, the very public flogging of whistleblowers by this administration and its cronies is rippling through the civil service and having a chilling effect on those who would like to report wrongdoing in their federal agencies.
The administration has not limited itself to attacking whistleblowers. It has also taken aim at the public officials charged with detecting and deterring waste, fraud, abuse, and misconduct. CBS News has reported, “In a span of six weeks, Mr. Trump has removed five officials from posts leading their respective agencies’ inspector general offices” after they initiated or revealed malfeasance in the Trump administration.
These actions are part of a dangerous, growing pattern of retaliation by the president and his politically powerful allies against those who report wrongdoing. But they also expose weaknesses in our current system of protecting those that expose malfeasance that predates the Trump Administration.
That is why PEER and a coalition of like-minded groups are proposing a series of reforms to help preserve federal whistleblower protection and provide accountability within the federal government. These steps include:
- Update the Whistleblower Protection Act to grant employees the right to a jury trial in federal court; give whistleblowers the right to challenge retaliatory investigations; extend temporary relief to whistleblowers whenever they prove a prima facie case of retaliation (i.e., when they have met their burden of proof in support of every element of their whistleblower retaliation claim); and extend whistleblower rights beyond protection from workplace retaliation, giving whistleblowers a legal defense against civil or criminal liability. Due to the effectiveness of current laws in protecting whistleblowers, both federal agencies and private employers have begun using other tactics to retaliate that are not currently covered by those laws, such as subjecting employees to civil and criminal prosecution. Current laws only cover “personnel actions” related to employment.
- Include model whistleblower provisions in COVID relief legislation that would go beyond current law in the ways discussed above. While these laws would only apply to whistleblowing about relief money expenditures, they could open the door to expanding such provisions to more general whistleblower laws.
- Nominate and appoint independent, nonpartisan, experienced individuals to be Inspectors General (IGs) responsible for receiving and investigating complaints made by whistleblowers, and bolster the IGs’ ability to investigate specific and systemic abuses. IG Offices are independent organizations within agencies that endeavor to detect and deter waste, fraud and abuse through its audits, inspections, evaluations and investigations
- Ensure protection and functioning of agency IGs, the Office of Special Counsel (OSC), and the Department of Labor’s (DOL) whistleblower program by passing legislation that increases their funding and grants IGs for-cause removal protections. The OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. DOL adjudicates whistleblower complaints under more than 20 federal laws applying to various sectors and industries. Most apply to private sector employees, but they also protect employees who blow the whistle on abuses under five federal environmental laws.
Two hundred and forty-three years ago, the Continental Congress passed the world’s first whistleblower protection act. Since then, Congress has taken additional steps to protect whistleblowers from executive branch retaliation. While far from perfect, these laws provided some level of protection for whistleblowers, as long as those in power were willing to implement and abide by them. The current administration, working with its Congressional allies, has chosen to blow apart these protections, and in doing so, highlighted how current whistleblower protections are failing and why they are in need of reform.
Paula Dinerstein is PEER’s General Counsel and represents PEER in whistleblower, environmental and FOIA cases.