Whistleblower Protection Act of 1989

Legislation

By: U.S. Congress

Date: 1989

Source: Library of Congress. "Whistleblower Protection Act of 1989." <http://thomas.loc.gov/cgi-bin/> (accessed May 26, 2006).

About the Author: The U.S. Congress is the primary law-making branch of the federal government.

INTRODUCTION

In 2002,Timemagazine staff were planning the publication's annual Person of the Year issue. This honor had previously gone to a wide array of persons as well as a few non-persons—the 1982 honoree was the personal computer. Rudy Giuliani, the charismatic mayor who led New York City through the 2001 terrorist attacks, and George W. Bush, winner of the strangest election in modern history, were the two previous winners. Since 2002 had been a year of seemingly endless corporate and government scandal,Time chose to honor three women who had played an important role in these events; each woman had risked her job to blow the whistle.

The term "whistleblower" has its origins in athletics, where officials frequently use a whistle to point out rule violations by players. In the workplace, the term refers to an employee who publicly reveals his employer's misdeeds. Blowing the whistle on one's employer is frequently a costly decision. Corporate executives rarely enjoy the negative publicity that accompanies whistleblowing, and in some cases the desire to suppress bad news or even criminal prosecution can lead to punitive actions against whistleblowers. Employees have been threatened, disciplined, and even fired for revealing company misdeeds in public, making the decision to blow the whistle extremely difficult.

As the largest bureaucracy in the country, the federal government has its reasonable share of employee misdeeds. While the government as a whole benefits when improper behavior is revealed, individuals within the government often have an incentive to cover up these actions or to punish those who reveal them. While whistleblowing was already protected by federal law such as the Civil Service Reform Act of 1978, no specific statute broadly protected a government employee's ability to report misdeeds without reprisal. The Whistleblower Protection Act of 1989 addressed this deficiency.

The Whistleblower Protection Act included several specific provisions. It began by noting the value of whistleblowing activity in reducing fraud and selfenrichment by government employees. It also stipulates that government employees shall not suffer reprisals for whistleblowing behavior. In addition, the act empowered the Office of Special Counsel to enforce the law, specifically by investigating complaints of reprisals and determining penalties. A 1994 amendment to the law extended its protections to employees of government corporations and the Veterans' Administration, and later legislation provided similar safeguards for members of the military.

The Whistleblower Protection Act specifies a series of steps to be followed in response to allegations. First, complaints are investigated for merit and those found worthy are referred to the Office of Special Counsel for further action. A 1999 Congressional report found that twenty to thirty percent of complaints are referred to the Special Counsel, while the rest are closed. Of those referred for further action, about one-fourth result in favorable rulings for the complainant.

PRIMARY SOURCE

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Whistleblower Protection Act of 1989'

SEC. 2. FINDINGS AND PURPOSE.

1. FINDINGS-The Congress finds that—
   1. Federal employees who make disclosures described in section 2302(b)(8) of title 5, United States Code, serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures;
   2. protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and
   3. in passing the Civil Service Reform Act of 1978, Congress established the Office of Special Counsel to protect whistleblowers (those individuals who make disclosures described in such section 2302(b)(8)) from reprisal.
2. PURPOSE-The purpose of this Act is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by—
   1. mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and
   2. establishing—
      1. that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;
      2. that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and
      3. that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.

SIGNIFICANCE

While the Whistleblower Protection Act clearly defines the rights of federal employees, critics argue that the actual protections it provides are weak. Specifically, they note that the burden of enforcement lies almost entirely on the Office of Special Counsel, which has frequently appeared less aggressive than they would like. Further, these critics complain that the objective of the process is not to investigate the original alleged misdeeds, but to assess and protect the rights of the individual whistleblower, suggesting that the process primarily treats symptoms rather than addressing the underlying disease. A related criticism is that the system is primarily reactive in its perspective, addressing complaints as they are raised, but doing little to prevent future abuses. Compounding these problems, a 1999 report prepared for Congress found that most government employees know little about their legal rights as whistleblowers, making them potentially less likely to report inappropriate or illegal behavior.

Time magazine's 2002 Person of the Year selection brought whistleblowing back into the spotlight. In response to a perceived pattern of executive and accounting abuses at Enron, WorldCom, and other firms, Congress passed the Sarbanes-Oxley Act, which tightened reporting requirements and stiffened penalties for executives of public corporations. In addition to these well-known changes, the law also protects employees at public firms from retaliation for whistleblowing, as well as requiring firms to set up internal procedures that facilitate such reporting.

FURTHER RESOURCES

Books

Alford, C. Fred. Whistleblowers: Broken Lives and Organizational Power. Ithaca, N.Y.: Cornell University Press, 2002.

Busse, Richard C. Employees Rights: Your Practical Handbook to Workplace Law. Naperville, Ill.: Sourcebooks, 2004.

Swartz, Mimi, and Sherron Watkins. Power Failure: The Inside Story of the Collapse of Enron. New York: Currency, 2004.

Periodicals

Edmonds, Sibel, and William Weaver. "To Tell the Truth." Bulletin of the Atomic Scientists 12 (2006): 16–18.

"The Next Step: Federal Government and Whistleblowers." CQ Researcher 16 (2006): 287.

"Secrecy Hides Accountability." USA Today(March 16, 2006): 14A.

Web sites

Occupational Safety and Health Administration. "What Are My Rights as a Whistleblower?" <http://www.osha.gov/oshdoc/data_whistleblowerfacts/whistleblower_ protections-general.pdf> (accessed May 25, 2006).

Public Service Commission of Canada. "Three Whistleblower Protection Models: A Comparative Analysis of Whistleblower Legislation in Australia, the United States, and the United Kingdom." October 2001. <http://www.psc-cfp.gc.ca/research/merit/whistleblowing_e.htm> (accessed May 25, 2006).

U.S. Merit Systems Protection Board. "Questions and Answers About Whistleblower Appeals." <http://www.mspb.gov/foia/forms-pubs/qawhistle.html> (accessed May 25, 2006).