22. Whistleblower Statutes

Whistleblower statutes protect employees when they find themselves in the difficult position of discovering their employer violating a law or in some way breaching the public trust. If the employer is warned of the problem but takes no action, or asks the employee to keep the situation confidential, the employee may be personally participating in a crime and may be exposed to a certain amount of personal liability. Sometimes, the right thing to do is to report the employer to the authorities (or, “blow the whistle”), but the employee may risk losing his job or position within the company. In this situation, the employee may be torn between a legal or ethical duty and perceived loyalty to his employer. “Whistleblower” issues arise in various circumstances, such as when an employee discovers that his employer that is a government contractor is overbilling the government, or when a public or private employer is discovered cutting corners on safety matters in violation of rules and regulations under state occupational health and safety acts. Other situations may involve employer practices of job discrimination, abuse of adult or juvenile patients in a health care facility, or medical malpractice.

In these situations, if an employee exposes an unsafe, illegal or unethical practice to the authorities, the employee may be the subject of punitive or retaliatory action, such as, dismissal, transfer to an undesirable job assignment, demotion, etc. Whistleblower statutes may prohibit dismissal or other retaliatory action against the employee. They may also provide for enhanced monetary awards to employees who “blow the whistle” on an unscrupulous employer.

State whistleblower statutes vary in a number of respects. Some states only provide explicit protection of public employees or those working for government contractors. Statutes also vary with respect to whom is protected or on whom the whistle may be blown. Some states extend protection to other co-workers who assist the whistleblower; some explicitly protect an employee who blows the whistle on fellow employees or another person or business entity with a business relationship with the employer.

Most states limit remedies that an employee may recover to actual damages, such as back pay or fringe benefits. In some cases, however, the employee is given a money award tied to the illegal or unethical activity exposed. In South Carolina, if the employee’s report or complaint results in a savings of public funds, s/he may recover 25% of the estimated net savings in the first year after corrective action is undertaken, up to $2,000.

It should be noted that in addition to state statutes, there are a number of federal whistleblower provisions which protect employees in much the same way. In fact, one state, Illinois, has recently taken the unusual step of repealing its whistleblower statute, apparently in deference to the federal law. There is some sound logic in this; if the state and federal laws are roughly equivalent the state can save valuable administrative resources in the repeal because it is no longer under an obligation to enforce its own law. Many federal laws include much harsher penalties for employers and greater rewards for employees who risk careers and livelihoods by reporting activity that is damaging to the public trust.

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

WHISTLEBLOWING

The origin of the term whistleblowing is uncertain. It may refer to English policemen blowing whistles to alert others to an illegal act or to sports referees stopping a game due to a rule infraction. The term began to be used in a way relevant to science, technology, and ethics in the 1960s and became part of the common vocabulary as a result of Ralph Nader's investigative activities during the 1970s. The American Heritage Dictionary defines a whistleblower as "one who reveals wrongdoing within an organization to the public or to those in positions of authority," but a more detailed analysis of the term is appropriate.

Analysis of the Concept

Based on the above definition, it is possible to distinguish between internal and external whistleblowing. Internal whistleblowing occurs when the hierarchical chain of command within an organization is violated, so that one's immediate superiors are bypassed, perhaps because they have refused to act or are themselves involved in the wrongdoing. The whistleblowing is internal, however, because it stays within the organization. External whistleblowing refers to going outside the organization, possibly to a regulatory agency, the press, or directly to the public. The philosophical literature often restricts the use of the term to external whistle-blowing, but the media typically use it in both senses.

A further distinction may be made between open and anonymous whistleblowing. The former means that the identity of the whistleblower is known, while such identity remains unknown in the latter. Anonymous whistleblowing is generally considered to be less effective, because it is more easily ignored and because no follow-up with the whistleblower is possible. Organizations have also shown themselves willing to devote significant resources to discover the identity of anonymous whistleblowers, a task made easier by the limited number of individuals who typically have access to the information being revealed. At the same time, whistle-blowers often want to hide their identities because of possible reprisals from their organizations or colleagues.

The idea of wrongdoing also requires clarification. Generally not every wrongdoing is considered to be a legitimate subject for whistleblowing. The wrongdoing must entail serious harm, whether physical, psychological, or financial. Depending on the particular philosophical perspective, the notion of harm might be extended to situations where human beings are only indirectly affected, such as through damage to the environment. Serious harm is considered to be the appropriate criterion in that whistleblowing itself is an act which that tends to harm the parties involved and thus requires a balancing of outcomes.

Finally, although omitted in the popular definition, whistleblowers need to be insiders, that is, either currently or formerly associated with the organization on which they are blowing the whistle. Outsiders might be considered spies, investigative reporters, or moles, but not whistleblowers. Whistleblowing must involve a conflict of loyalties, between the duty of loyalty to an organization and duties to the public or to a principle. For an infiltrator, no such duty of loyalty to the organization exists. It should be noted, however, that whistleblowers often do not perceive themselves as being disloyal, especially in instances of internal whistleblowing, but believe they are working for the long-term organizational good.

Ethical Perspectives

From the perspective of ethics, whistleblowers are faced with deciding whether breaking the bond of loyalty is justified in a particular circumstance. The philosopher Richard DeGeorge proposed the classic criteria for justifying whistleblowing; most other criteria are a reaction to his formulation. DeGeorge argues that external whistleblowing is morally permissible if three conditions are met: (a) substantial harm will be done to persons; (b) the immediate superior is made aware of the problem; and (c) the chain of command of the organization is exhausted. DeGeorge contends that whistleblowing is morally obligatory if two additional conditions are met: (d) enough documented evidence is available to the whistleblower to convince an impartial individual; and (e) the whistleblower has a justified belief that the wrongdoing will be corrected as a result of going public.

A number of critiques have been leveled against DeGeorge's criteria, including questions about the extent to which a future rather than a past harm must be involved, immediacy of the harm, lack of consideration for the fate of the whistleblower, and importance of the motives governing the action. Fundamentally these debates reflect the divergence between consequentialist and deontological approaches to the issue. Consequentialist thinkers emphasize the costs to the institution and to the whistleblower and the detrimental results of mistaken or malicious whistleblowing, while deontological thinkers tend not to distinguish as significantly between degrees of harm and are more concerned with justice being done.

For engineering, in particular, the issue of whistle-blowing has been a major focus of ethical discussions because of the potential impact of engineering activities on public safety. Most codes of engineering ethics follow the lead of the Accreditation Board for Engineering and Technology (ABET) by emphasizing that "engineers shall hold paramount the safety, health and welfare of the public in the performance of their professional duties." Preventing physical harm to people is seen as a special professional responsibility of engineers based on their technical expertise. Many codes even obligate engineers to blow the whistle by requiring notification of the proper authority when public safety is endangered.

Whistleblowing in science generally has a different justification. Most often it is related to the research process and falsification of data, although research can also directly harm the human subjects involved or the public at large through the introduction of products based on falsified data. The difference in emphasis between science and engineering whistleblowing can be traced to the fundamental emphasis given to truth and accuracy in science, as opposed to the need to protect the public from harmful technologies in engineering.

Due to the serious consequences associated with whistleblowing, most analyses stress that it should be an avenue of last resort. Many discussions have emphasized ways that organizations can avoid whistleblowing, including creating an internal ethics office, fostering open door practices, having clear organizational policies, or appointing an ombudsperson. One reason to highlight such alternatives is that the whistleblower often becomes the target of subsequent investigations, directing attention away from the misconduct that was revealed.

In fact, the consequences for whistleblowers are so universally negative, including shunning by colleagues and organizational reprisals, that whistleblowing is legitimately an act of moral heroism. Commentators such as Kenneth Alpern argue that engineers, given their special responsibility for the public safety, should be required to be moral heroes. Others, such as Mike Martin, believe that whistleblowing is a supererogatory act whose obligatory nature must be evaluated on a case-by-case basis, taking into account both professional duty and personal considerations. Whether certain individuals should be singled out and required to suffer grave consequences for the common good will continues to be a matter of debate.

HEINZ C. LUEGENBIEHL

SEE ALSO Engineering Ethics.

BIBLIOGRAPHY

Alpern, Kenneth D. (1983). "Moral Responsibility for Engineers." Business and Professional Ethics Journal 2(2): 39–47. Argues that engineers have a higher duty than others to blow the whistle.

Davis, Michael. (1996). "Some Paradoxes of Whistleblowing." Business and Professional Ethics Journal 15(1): 3–19. Critiques DeGeorge's analysis of whistleblowing and substitutes a complicity theory.

DeGeorge, Richard T. (1999). Business Ethics, 5th edition. Upper Saddle River, NJ: Prentice Hall. Provides the most commonly cited treatment of whistleblowing. Also distinguishes between responsibilities of business people and professionals.

Johnson, Roberta Ann. (2003). Whistleblowing: When it Works—and Why. Boulder, CO: Lynne Rienner. Emphasizes the legal dimensions of whistleblowing.

Lubalin, James S., and Jennifer L. Matheson. (1999). "The Fallout: What Happens to Whistleblowers and Those Accused But Exonerated of Scientific Misconduct?" Science and Engineering Ethics 5(2): 229–250. An empirical study of consequences associated with whistleblowing in science.

Martin, Mike W. (1992). "Whistleblowing: Professionalism, Personal Life, and Shared Responsibility for Safety in Engineering," Business and Professional Ethics Journal 11(2): 21–37. Argues against DeGeorge that deciding whether whistleblowing is obligatory should be contextually determined based on an all-things-considered judgment.

Martin, Mike W., and Roland Schinzinger. (1996). Ethics in Engineering, 3rd edition. New York: McGraw-Hill. The most widely used text on engineering ethics. It extends DeGeorge's analysis of whistleblowing.

Whitbeck, Caroline. (1998). Ethics in Engineering Practice and Research. New York: Cambridge University Press. Focuses on ethical issues in scientific research.

INTERNET RESOURCE

National Society of Professional Engineers. "NSPE Code of Ethics for Engineers," rev. January 2003. Available at http://www.nspe.org/ethics/eh1-codepage.asp.

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.