Whistle-Blowers

THE WHISTLE-BLOWER’S EXPERIENCE

FEDERAL AND STATE LAWS

BIBLIOGRAPHY

In a definition typical of those found in the research literature, Janet P. Near and Marcia P. Miceli in 1985 described whistle-blowers as organization employees, current or former, who report practices they consider unethical or illegal to someone with the power to take action. Although the public and many journalists may consider whistle-blowing to include only those cases in which the whistle-blower has alerted external audiences to the misconduct, for example, of someone in the media or in law enforcement, researchers in the field since the mid-1980s have tended to extend the definition to include both internal and external audiences. For example, an employee at a nuclear power plant might alert only a manager in a superior position in the authority hierarchy to a safety violation or concern. Researchers refer to this as “internal whistle-blowing.” Alternatively, the individual employee could go directly to a mass-media outlet or to law enforcement with their observations. This is termed “external whistle-blowing.” In the prototypical case, it has been found that employees with serious concerns tend to take them first to their superiors in the employing organization, and only when they find the senior managers to be inert or complicit in the perceived wrongdoing do they take the matter to external agencies that might be able to intercede (Glazer and Glazer 1989; Miethe and Rothschild 1994).

A GROWING PHENOMENON

In the late twentieth century and the early twenty-first century the extent of whistle-blowing grew greatly, with studies reporting substantial cases in Canada, Australia, South Africa, the United Kingdom, and Europe in addition to the United States, and worldwide attention paid to whistle-blowers in the mass media has been expanding. One analysis of previous research studies of whistle-blowing in the United States found that approximately 37 percent of employees observe in their workplaces some type of wrongdoing that troubles them (Miethe and Rothschild 1994). This rate, however, can vary considerably by occupational grouping. Among internal auditors, people who are trained to discover financial fraud and whose jobs require them to look for it, 82 percent say they have observed wrongdoing (Near and Miceli 1985). A large survey of federal employees found the rates of observing misconduct to range from 7 percent to 45 percent, depending upon the agency and the occupation involved (U.S. Merit Systems Protection Board 1993). The proportion of those who say they have observed serious misconduct in the workplace varies greatly by the opportunity for such observation in one’s occupation.

Of those who do say they have observed misconduct, most remain silent, although this too can vary considerably by country, occupation, and type of employer. Across six U.S. studies of employers, the average rate of silence among those who said they did observe serious misconduct in their places of work was 58 percent (Miethe and Rothschild 1994), while a later international review of the research literature shows that the rate of those who remain silent can vary from 25 percent to 91 percent (Maria 2006). These numbers imply that there is considerable room for growth in this whistle-blowing phenomenon if more individuals felt free to voice their concerns. Undeniably, interviews with these silent observers indicate two main reasons so many employees hold back from voicing their concerns at work: (1) they fear retribution from their employer, and (2) they suspect that their reportage would not effect organizational change in any case (Rothschild and Miethe 1999).

THE WHISTLE-BLOWER’S EXPERIENCE

Research findings quite clearly show that observers of misconduct do put themselves in jeopardy by reporting or disclosing the misconduct, whether they stay inside the organization or go outside the organization with their disclosures. Indeed, employer retaliation against whistle-blowers is the rule, not the exception, and some whistle-blowers are so devastated by the reprisals they suffer that they cannot reclaim their lives (De Maria 1999; Alford 2001). A nationwide study of whistle-blowers from all occupations and regions of the United States found that among those employees who stayed within their employing organization, reporting their observations and concerns only to those above them in the organizational hierarchy, the following occurred as a result of their disclosures:

69 percent were fired or forced to retire from their jobs,

64 percent saw their job performance evaluations decline abruptly,

68 percent had their work more closely monitored by supervisors,

64 percent felt they had been blacklisted from getting another job within their field.

For each of these items, the rate of retaliation was 10 to 15 percentage points higher for those who went outside of the employing organization with their concerns (Rothschild and Miethe 1999). In many cases, the reprisals that follow the reportage are experienced as traumatic. Some 84 percent said the experience gave rise to “severe depression or anxiety,” 78 percent said they learned from it “distrust of others,” 69 percent said they suffered a “decline in physical health,” 66 percent said they suffered “severe financial decline,” and 53 percent said the experience harmed their “family relations.” Many former whistle-blowers describe their experiences as giving rise to a political and personal transformation by which they now see themselves as exceedingly moral and their former employers (and in many cases, large organizations in general) as corrupt (Rothschild and Miethe 1999).

Statistical analysis of the data indicates that no special gender, age, educational attainment, years of employment, or method of reporting can insulate individuals from organizational retaliation should they choose to disclose the organizational misconduct. Validity of the claim also provides no insulation. Indeed, the data show that retaliation against whistle-blowers is most severe and certain when the observed wrongdoing is systemic and central to the way the organization conducts its business and accumulates its profit (Rothschild and Miethe 1999).

FEDERAL AND STATE LAWS

Federal and state laws that would protect whistle-blowers from retaliation and that would thereby encourage the disclosure of organizational practices that injure the public are not comprehensive, and even where they do seem to be applicable, they are frequently not enforced (see Government Accountability Project 1996 for a review of these). It is not easy for the whistle-blower, generally unemployed, to mount a successful legal claim against a former employer with vastly greater legal resources. The Sarbanes-Oxley Act of 2002 provides the most substantial legal protection for whistle-blowers, but it applies only to those who would disclose corporate misconduct that, if proven, would materially affect the valuation of a publicly traded company. The qui tam suits filed under the provisions of the False Claims Act have proven most effective at gaining large awards for whistle-blowers, but this act applies only to those employees whose employers were defrauding the federal government, again covering only a portion of the potential whistle-blowers.

As organizations grow larger in scope and more complex operationally, effective oversight from outside agencies becomes more difficult, and often the only people who are in a position to detect when the organization is defrauding or endangering the public are key employees themselves. The U.S. Congress has recognized the public’s interest in protecting whistle-blowers so abuses of the law or the public trust can come to light, and parliaments in other nations have recognized the same. But the extent of persistent retaliation against whistle-blowers and the extent of employees who choose to remain silent in the face of abuses at work suggests that more needs to be done.

BIBLIOGRAPHY

Alford, C. Fred. 2001. Whistleblowers: Broken Lives and Organizational Power. Ithaca, NY: Cornell University Press.

De Maria, William. 1999. Deadly Disclosures: Whistleblowing and the Ethical Meltdown of Australia. Kent Town, Australia: Wakefield.

Glazer, Myron Peretz, and Penina Migdal Glazer. 1989. The Whistleblowers: Exposing Corruption in Government and Industry. New York: Basic.

Government Accountability Project. 1996. Courage without Martyrdom: The Whistleblower’s Survival Guide. Washington, DC: Author.

Maria, William. 2006. Brother Secret, Sister Silence: Sibling Conspiracies against Managerial Integrity. Journal of Business Ethics 65 (3): 219–234.

Miethe, Terance D., and Joyce Rothschild. 1994.

Whistleblowing and the Control of Organizational Misconduct. Sociological Inquiry 64 (3): 322–347.

Near, Janet P., and Marcia P. Miceli. 1985. Organizational Dissidence: The Case of Whistle-Blowing. Journal of Business Ethics 4 (1): 1–16.

Rothschild, Joyce, and Terance D. Miethe. 1999. Whistle-Blower Disclosures and Management Retaliation: The Battle to Control Information about Organizational Corruption. Work and Occupations 26 (1): 107–128.

U.S. Merit Systems Protection Board. 1993. Whistle-blowing in the Federal Government: A Report to the President and the Congress of the United States. Washington, DC: U.S. Government Printing Office.

Joyce Rothschild

Whistleblower Protection Laws (1989)

Robert G. Vaughn

The whistleblower provision of the Civil Service Reform Act of 1978, known as the Reform Act (P.L. 95-454, 92 Stat. 111) is the major piece of legislation protecting federal employees who disclose information (blow the whistle) on government misconduct or waste. In his presidential campaign, Jimmy Carter had promised to push for legislation to protect federal employee whistleblowers from retaliation. Carter made good on his campaign promise, and the provision he proposed received bipartisan support in Congress. In 1989 the Whistleblower Protection Act, known as the WPA (P.L. 101-12, 103 Stat. 16), strengthened the protections provided in the Reform Act.

These whistleblower protection laws prohibit reprisal against federal employees who "reasonably" believe that their disclosures show "a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a specific and substantial danger to public health and safety." Disclosures can be made to any person, and internal disclosure (within the government agency) is not required. Disclosures are only protected if "not specifically prohibited by law and if such information is not specifically required by an Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs." These prohibited disclosures, however, can be made to the inspector generals of government agencies or to the Office of Special Counsel, an office created in part to represent the interests of whistleblowers.

ENFORCEMENT

These laws create a structure of administrative enforcement. Whistleblowers who have been subjected to certain personnel actions, such as removal, suspension, transfer, reassignment, or other similar actions taken as punishment, can raise whistleblowing as a defense before the United States Merit Systems Protection Board, a type of administrative court. Whistleblowers who were subject to personnel actions not appealable to the board have to rely either on the Office of Special Counsel to bring their claims before the board or may commence an independent right of action before the board. This independent right of action allows the board to address only employees' whistleblower claims. The decisions of the board are reviewed by the United States Court of Appeals for the Federal Circuit.

Whistleblowers are entitled to a number of remedies, including back pay and compensatory damages. These laws permit the Office of Special Counsel to commence disciplinary actions against federal officials who have retaliated against whistleblowers. Under this authority, a number of individual federal officials have been dismissed or suspended. In addition, the Special Counsel may require the head of an agency to respond to the allegations made by a whistleblower.

INCREASED PROTECTION

The WPA strengthened whistleblower protection. Perhaps the most important change eases the burden on federal employees of proving they have been subjected to a reprisal. Employees need only show that protected disclosures were a "contributing factor" to the personnel action alleged to have been taken in reprisal. If an employee can demonstrate this connection, the agency must show by "clear and convincing evidence" that it would have taken the same action had the employee not made a disclosure protected by law. The WPA also rejects a number of decisions of the U.S. Court of Appeals for the Federal Circuit that Congress believed were unduly restrictive interpretations of the law.

WHISTLEBLOWING AS CIVIC DUTY

One of the most important effects of these whistleblower laws has been to legitimize whistleblowing. Whistleblowing is no longer seen as an act of disloyalty but as the fulfillment of civic responsibility. Whistleblowers protect society not only from misconduct and waste but also from unsafe and dangerous conditions.

At the time of the passage of the Reform Act, whistleblowing was a scorned activity often officially punished. Today, Congress approves of whistleblowing in the strongest terms and has acted often to protect whistleblowers from reprisal. Dozens of state statutes, many modeled after the Reform Act or the WPA, protect whistleblowers in both the public sector and private sector.

PROTECTION IN THE PRIVATE SECTOR

Federal legislation protects whistleblowers who work in the private sector and who report violations of a variety of federal health, safety, and environmental laws. Also, in response to fraud and misconduct by large corporations and the accountants and attorneys representing them, Congress included whistleblower protection in the Sarbanes-Oxley Act of 2002 (P.L. 107-204, 116 Stat. 802), a law addressing this misconduct. Federal whistleblower protections now cover millions of private sector employees.

The private sector provisions are administrated by the United States Department of Labor. The whistleblower provision of the Sarbanes-Oxley Act permits private-sector whistleblowers to bring an action in federal district court if the Department of Labor does not resolve their claims of reprisal in a timely manner. In those district court actions, whistleblowers are entitled to receive a trial by jury.

Like public sector whistleblowers, those in the private sector also support the public's right to know about the operations of government. The disclosures by private-sector whistleblowers often concern the misconduct of government officials as well as their employers. Disclosures concerning health or safety or the environment, likewise, may identify weaknesses in government administration or regulation. In these ways, protections of private-sector whistleblowers support the freedom of expression and the right to know as do the protections of public employees.

EXPOSING CORRUPTION AND FRAUD

Public and private sector employees are important sources of information about the corruption of government officials and fraud regarding public funds. The federal False Claims Act, after amendments in 1986 (P.L. 99-562, 100 Stat. 3153), has encouraged disclosures by both private and public employees that have led to the recovery of billions of dollars fraudulently obtained from the government. The False Claims Act contains its own whistleblower provision to protect those employees who seek to use the act to challenge fraud and misconduct. The act encourages whistleblowing not only through whistleblower protection but also by permitting them in some circumstances to receive a percentage of the funds recovered on behalf of the government.

INTERNATIONAL PROTECTIONS

More recently there has been a growing international consensus for whistleblower protection. Many countries in Europe, Asia, Africa, and South America have adopted provisions applying whistleblower protection to large segments of society. Several international instruments, including multinational treaties, regulations of international institutions, and codes of conduct now include protections of whistleblowers.

Whistleblower protection, like freedom of information laws and other open government provisions, supports the right of freedom of expression. This right is the foundation of democratic accountability and of democratic government.

See also: Civil Service Reform Act; Freedom of Information Act.

BIBLIOGRAPHY

Devine, Thomas. "The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent." Administrative Law Review 35 (1999): 531–579.

Vaughn, Robert G. "Statutory Protection of Whistleblowers in the Federal Executive Branch." University of Illinois Law Review (1982): 615–667.

Protecting Whistleblowers

According to the nonprofit group the National Whistleblower Center, about half the whistleblowers who responded to a 2002 survey reported that they had been fired after reporting misconduct. Most of those who remained on the job reported harassment or discipline. The Office of Special Counsel, a government agency that protects government whistle-blowers, reports that they handle nearly 700 complaints per year about employer retaliation. While more than a dozen federal laws protect whistle-blowers in particular circumstances, there are still many complainants who do not receive government protection, including those who report election fraud, campaign finance abuse, and obstruction of justice.

WHISTLEBLOWING

The disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing.

Since the 1960s, the public value of whistle-blowing has been increasingly recognized. For example, federal and state statutes and regulations have been enacted to protect whistleblowers from various forms of retaliation. Even without a statute, numerous decisions encourage and protect whistleblowing on grounds of public policy. In addition, the federal False Claims Act (31 U.S.C.A. § 3729) will reward a whistleblower who brings a lawsuit against a company that makes a false claim or commits fraud against the government.

Persons who act as whistleblowers are often the subject of retaliation by their employers. Typically the employer will discharge the whistleblower, who is often an at-will employee. An at-will employee is a person without a specific term of employment. The employee may quit at any time and the employer has the right to fire the employee without having to cite a reason. However, courts and legislatures have created exceptions for whistleblowers who are at-will employees.

Whistleblowing statutes protect from discharge or discrimination an employee who has initiated an investigation of an employer's activities or who has otherwise cooperated with a regulatory agency in carrying out an inquiry or the enforcement of regulations. Federal whistle-blower legislation includes a statute protecting all government employees, 5 U.S.C.A. §§ 2302(b)(8), 2302(b)(9). In the federal civil service, the government is prohibited from taking, or threatening to take, any personnel action against an employee because the employee disclosed information that he or she reasonably believed showed a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public safety or health. In order to prevail on a claim, a federal employee must show that a protected disclosure was made, that the accused official knew of the disclosure, that retaliation resulted, and that there was a genuine connection between the retaliation and the employee's action.

Many states have enacted whistleblower statutes, but these statutes vary widely in coverage. Some statutes apply only to public employees, some apply to both public and private employees, and others apply to public employees and employees of public contractors.

Some statutes cover a broad array of circumstances, such as those that apply to federal employees that prohibit employers from dismissing workers in reprisal for disclosing information about, or seeking a remedy for, a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a specific danger to public safety and health. Other statutes are narrow in scope, such as one that limits the protection of public and private employees to retaliation for reporting possible violations of local, state, or federal environmental statutes. A whistleblower statute may also limit protection to discussions of agency operations with members of the legislature or to disclosure of information to legislative committees or courts.

In whistleblower cases, states follow their general rules for determining whether a public policy cause of action exists in favor of the employee. Therefore, in states in which wrongful discharge actions must have a statutory (legal) basis, the case will be dismissed if the employer did not violate a statutorily enacted public policy. In many cases, the courts have refused to recognize a whistleblower's claim because no clearly mandated statutory policy has been identified. In addition, employees who blow the whistle on matters that affect only private interests (e.g., complaints about internal corporate policies) will generally be unsuccessful in maintaining a cause of action for discharge in violation of public policy.

Under the federal False Claims Act, any person with knowledge of false claims or fraud against the government may bring a lawsuit in his own name and in the name of the United States. As long as the information is not publicly disclosed and the government has not already sued the defendant for the fraud, the whistle-blower, who is called a relator in this action, may bring a False Claims Act case.

The relator files the case in federal court under seal (in secret), and gives a copy to the government. The government then has 60 days to review the case and decide whether it has merit. If the government decides to join the case, the case is unsealed, a copy is served on the defendant, and the government and the relator work together in the case as co-plaintiffs. If the government declines to join the suit, the relator may proceed alone. In a successful False Claims Act case the relator will receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.

In the early 1990s, commentators were claiming that men were more likely than women to blow the whistle on improper conduct. Some analysts suggested the reason for this perception was that men seem to seek financial gain for whistleblowing. During the early 2000s, however, a number of women became involved in high profile acts of whistleblowing—for reasons other than fame and fortune.

In 2001, Sherron Watkins, a vice president at Enron Corporation, informed the company's board that Enron's accounting practices were improper. Enron later suffered a major collapse—largely as a result of its accounting practices—that led to the company's bankruptcy and to the indictment of the company's auditor and chief financial officer. The following year, Cynthia Cooper, an auditor with WorldCom, told the company's board that WorldCom had covered up major losses of $3.8 billion through false bookkeeping. Like Enron, the accounting

failures led to WorldCom's bankruptcy. During the same year, Coleen Rowley, an FBI staff attorney for more than 20 years, sent a letter to FBI director robert mueller, indicating that the FBI's national headquarters had mishandled an investigation of Zacarias Moussaoui, who was later believed to be a co-conspirator in the September 11, 2001, terrorist attacks. Rowley later spoke before the intelligence committees of the House of Representatives and the Senate about her accusations.

Time magazine dubbed 2002 the "Year of the Whistleblower," and named Watkins, Cooper, and Rowley as its "Persons of the Year." Their stories fueled the observation that women are more likely to become whistleblowers not for the potential for fame and financial gain, but out of a sense of duty. Although Watkins, Cooper, and Rowley were each subjected to rather harsh treatment by their respective employers following their disclosures, they became national celebrities by "speaking up when no one else would."

further readings

Callahan, Elletta Sangrey, and Terry Morehead Dworkin. 1992. "Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act." Villanova Law Review 37.

Helmer, James B. 2002. False Claims Act: Whistleblower Litigation. 3d ed. Charlottesville, Va.: LexisNexis.

Kelly, James. 2002. "The Year of the Whistle-Blowers." Time (December 30).

Whistleblowing: A Federal Employee's Guide to Charges, Procedures, and Penalties. 2000. Reston, Va.: Federal Employees News Digest.

cross-references

Employment at Will; Employment Law.

Whistleblower

Employees who report wrongdoing they have discovered at work are known as whistleblowers. Wrongdoing may refer to illegal actions taken by the company or its employees, such as immoral choices regarding customers and unethical practices used by the corporate board. Thanks to several major corporate scandals in the early 2000s, policies and practices regarding whistleblowers have become a popular topic. Whistleblowers have exposed a wide variety of issues, including environmental actions (such as toxic waste dumping), illegal benefit packages for executives, unethical hiring or lay-off procedures, violation of work-place safety laws, and unfair employee reimbursement.

In earlier years of American companies, such as the 1960s, corporations rarely encountered whistleblowers; then, more focus was placed on company loyalty and more freedom granted in layoffs. The rise of lawsuits against companies for dangerous business practices in the 1970s and 1980s led to a business society more tolerant of whistleblowing activity, and such legislation as the 1989 Whistleblower Protection Act and the Sarbanes-Oxley Act made corporate whistleblowing an even easier and more common practice.

Famous whistleblowers include Cynthia Cooper, Sherron Watkins, and Peter Rost. Cynthia Cooper spear-headed an internal audit of the company WorldCom, continuing even when she was asked to postpone the investigation; Cooper discovered fraud dealing with billions of dollars. Sherron Watkins is considered one of the primary whistleblowers in the Enron scandal, from her actions in notifying Enron's C.E.O. Kenneth Lay concerning fraudulent activity to her testimony before U.S. Congress. Peter Rost, known for his book The Whistleblower, also gave testimony concerning fraudulent activity he had witnessed at the pharmaceutical giant Pfizer and other pharmaceutical companies.

WHISTLEBLOWING FOR EMPLOYEES

Whistleblowing is a very serious choice for employees to make, and it may come with a very high cost, especially if they do not have thorough proof of wrongdoing or are not willing to take all the necessary measures in reporting illegal behavior. There are several very important facets to consider:

• The whistleblower must be sure what the consequences of whistleblowing will be. How much damage has been done to the environment, investors, or others should be ascertained, along with how these groups will benefit from whistleblowing. Sometimes, there is no clear benefit to reporting an illegal activity. Whistleblowers should also be sure that the illegal activity merits a full declamation to authorities, or a recourse to ethical standards set within the corporations.
• Whistleblowers should keep in mind the time involved in the illegal activity. Has it been going on for a long time? Will the harmful effects of the wrongdoing be immediately apparent? Can people be saved from unethical practices if immediate action is taken by the whistleblower?
• The whistleblower should be very careful when considering physical and emotional closeness to the wrongdoing. Is the whistleblower near to the source of wrongdoing in their function within the company? Does he or she have an emotional connection to the issue that may cloud judgment?

WHISTLEBLOWING FOR EMPLOYERS

Companies are becoming increasingly concerned about inappropriate whistleblowing by disgruntled employees seeking to make a profit at their corporation's expense. Certain parts of recent legislation, such as the Sarbanes-Oxley Act, grant protection to employees who voluntarily report wrongdoing, and it penalizes companies being investigated for illegal practices. These new penalties have made many corporations wary of trusting their employees to perform legitimate whistleblowing actions. Fortunately, a company with a well-constructed ethical system can deal with whistleblowers appropriately. Professor Ariane David, with the Graziadio Business Report, gives several steps for companies to take when planning for whistleblowing:

• Companies should know what they really want. Many corporations can proclaim acceptance and encouragement of whistleblowing activity while managing ingrained company attitudes and systems that in fact block whistleblowers. When companies agree to encourage whistleblowing and fair standards, they should be sure that the proper communication channels are available for them to keep their word.
• Official policies should make it clear that unethical practices are not tolerated. This makes it more likely that employees, when confronted with wrongdoing, will take steps to solve the problem within the company rather than seeking outside authority. The company should have steps in place to thoroughly investigate and remedy any report of unethical behavior.
• Companies should walk their walk, and truly protect whistleblowers from any kind of retaliation. The way in which companies carry out their ethical standard policies is just as important as creating the standards in the first place.
• Companies should reward whistleblowers who report illegal activity in a timely and responsible fashion.
• When whistleblowing occurs, companies should stick to their policy of response, following their own steps strictly. They should listen carefully to employees and respond immediately to the situation.

RETALIATION

One of the main issues that arises from whistleblowing is retaliation, or further unethical activity on the part of the company toward the whistleblower. Retaliation usually falls into four different categories: nullification, isolation, defamation, and expulsion. Nullification occurs when a manager attempts to block the whistleblower's report through intimidation or control of communication channels. Isolation is the act of removing any information or resources from the employee that may lead to proof of illegal activity. A company may also try to publicly degrade the whistle-blower's character, sanity, or reputation, a process known as defamation. Other companies may attempt to push the employee out of the organization, through either reassignment or termination, an activity called expulsion.

Current laws regarding retaliation are complex, but give guilty companies very heavy penalties. Usually, a company inspected for illegal retaliation is forced to pay for the inspection, the legal costs for the employee, and any settlement that may be given as a result of the ruling.

BIBLIOGRAPHY

David, Ariane. “Whistleblowers.” Graziadio Business Report. Pepperdine University, 2008. Available from: http://gbr.pepperdine.edu/054/whistleblower.html.

England, Liz. Business Ethics. U.S. Department of State, Bureau of Education and Cultural Affairs, 2008.

Katz, David M. and Julia Homer. “Worldcom Whistleblower Cynthia Cooper.” CFO Magazine. February 2008.

Ravishankar, Lilanthi. “Encouraging Internal Whistleblowing in Organizations.” Santa Clara University. Markkula Center for Applied Ethics, 2008.

Somerville, Leigh. “Wayward Whistle-Blowers.” The Business Journal. American City Business Journals, 2003.

Whistleblowing

Employees are the eyes and ears of environmental protection. They bury waste, operate incinerators, and witness the discharge of pollutants into the environment. However, employees who "blow the whistle" and report environmental wrongdoing are often subject to harassment, dismissal, and blacklisting.

In 1972 as part of the Federal Water Pollution Control Act, Congress recognized the critical role workers play in ensuring the enforcement of environmental laws and enacted the first environmental whistleblower law. Retaliating against environmental whistleblowers was made illegal and the victims of such misconduct finally benefitted from a government remedy at the federal level. By 1980 Congress passed six other environmental whistleblowers laws, protecting employees who blow the whistle on violations of the Toxic Substances, Safe Drinking Water, Solid Waste Disposal, Clean Air, Atomic Energy, and Comprehensive Environmental Response (Superfund) Acts.

Nearly every American worker is protected under these laws. The types of employees who have successfully filed suit include high-level managers who exposed the dumping of raw sewage into rivers, quality-assurance inspectors who reported nuclear safety violations, federal EPA scientists who published papers documenting flaws in risk assessments, and state inspectors who blew the whistle on a school built on a toxic waste dump. In each case the public was able to learn about and prevent significant threats to the environment and public health.

The federal environmental protection laws offer a remedy to the victims of retaliation. The employee initiates the process by filing a complaint with the U.S. Department of Labor (DOL) within thirty days of learning of the discriminatory action. The Occupational Safety and Health Administration (OSHA) investigates the complaint, and the whistleblower is entitled to a full evidentiary hearing before the DOL. If the whistleblower wins, that individual is entitled to reinstatement, back pay, attorney fees, damages for loss of reputation, and emotional distress. Under the Toxic Substances and Safe Drinking Water laws, whistleblowers may also be awarded punitive damages.

Although hundreds of employees have obtained relief under these laws (including some multimillion-dollar judgments), whistleblower cases are hard fought, and many environmental whistleblowers with valid cases lose in court. Some cannot afford attorneys experienced in this special area of the law, whereas others miss the thirty-day statute of limitations for filing complaints. Many whistleblowers are overwhelmed by the personal crises they must face after losing their jobs.

Environmental whistleblowers have also received significant support outside the legal system. For example, press coverage of Karen Silkwood's whistleblowing in the early 1970s called attention to the hazards of nuclear power plants. Additionally, public interest groups, such as the National Whistleblowers Center and Public Employees for Professional Responsibility, provide resources and assistance to environmental whistleblowers.

see also Activism; Laws and Regulations, International; Laws and Regulations, United States

Bibliography

kohn, stephen. (2001). "environmental and nuclear whistleblowing." in concepts and procedures in whistleblower law. westport, ct: greenwood publishing group.

internet resources

national whistleblower center. "environmental issues and nuclear safety." available from www.whistleblowers.org.

u.s. department of labor office of administrative law judges. "whistleblower." available from www.oalj.dol.gov.

Stephen M. Kohn

whistle-blowing exposure of fraud and abuse by an employee. The federal law that legitimated the concept of the whistle-blower, the False Claims Act (1863, revised 1986), was created to combat fraud by suppliers to the federal government during the Civil War. Under the act, whistle-blowers can receive a percentage of the money recovered or damages won by the government in fraud cases they expose. The act also protects whistle-blowers from wrongful dismissal, allowing for reinstatement with seniority, double back pay, interest on back pay, compensation for discriminatory treatment, and reasonable legal fees. Federal legislation in 1978 barred reprisals against those who exposed government corruption. Harassment and dismissal of and the revelation of widespread waste and fraud in defense contracting led Congress to strengthen the position of whistle-blowers in 1989. Many states also have employment laws that deal with discriminatory treatment of whistle-blowers.

whis·tle-blow·er (also whis·tle·blow·er) • n. a person who informs on someone engaged in an illicit activity. DERIVATIVES: whis·tle-blow·ing n.