Whistleblower Paradox: Laws Improve as Prosecutions Mount
Major Expansion of Federal Safeguards While States Steadily Strengthen Statutes
Washington, DC — 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.
At the end of the last session, a Congress that agreed on little unanimously passed a federal Whistleblower Protection Enhancement Act, closing a number of loopholes and extending whistleblower coverage to more civil servant disclosures. Also enacted were the very first enforceable whistleblower protections for employees of companies contracting with federal agencies.
These major statutory expansions took place against the backdrop of an unprecedented number of criminal prosecutions of whistleblowers. While some of these prosecutions were unsuccessful, the aggressive pursuit of leaks stood in contrast with statutory approval for public disclosures of wrongdoing.
“The federal government is schizophrenic about whistleblowers – there’s external approval matched with internal loathing,” stated PEER Executive Director Jeff Ruch, noting that actual treatment of whistleblowers within agencies remains as harsh and hostile as ever. “Regardless of what the law says, whistleblowing, in practical terms, is career suicide. Whistleblowers rarely are promoted, even more rarely are given an opportunity to fix the problems they exposed, and most often are simply shown the door.”
Meanwhile at the state level, five states strengthened their whistleblower laws, as reflected in the annual review of state laws compiled by PEER. In just the prior three years, another 25 states enacted stronger laws. Since 2006, when PEER started tracking, no state has weakened or repealed a whistleblower law.
During 2013, states improving their whistleblower laws were led by –
- Utah, which made the biggest improvement by extending coverage to disclosures of gross mismanagement and abuse of authority, creating administrative remedies and an appeals process for challenging retaliation and prohibiting managers from stirring up knowingly baseless investigations. Penalties imposed on retaliatory actions by managers now include hefty fines and potential dismissal;
- Arkansas established a bounty law whereby qualified whistleblowers could collect 10% of any state savings (up to $12,500) from curing the waste they reported; and
- Nevada lengthened the statute of limitations for bringing civil actions based on retaliation and made other whistleblower-friendly changes.
“Both red and blue states see whistleblowers as vital allies in rooting out waste and fraud,” said PEER Staff Counsel Kathryn Douglass, who compiled the state legislative updates. “While welcome, this trend toward stronger whistleblower laws does not make the realities of reform inside state agencies any easier.”
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.