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A whistleblower (whistle-blower or whistle blower)[1] is a person who exposes law, rule, regulation and/or a direct threat to public interest, such as fraud, health and safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).
Whistleblowers frequently face reprisal, sometimes at the hands of the organization or group which they have accused, sometimes from related organizations, and sometimes under law.
Questions about the legitimacy of whistleblowing, the moral responsibility of whistleblowing, and the appraisal of the institutions of whistleblowing are part of the field of political ethics.
The term whistle-blower comes from the whistle a referee uses to indicate an illegal or foul play.[2][3] US civic activist Ralph Nader coined the phrase in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches".[4]
Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it.[5] There are some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are
There are comprehensive laws in New Zealand and South Africa. A number of other countries have recently adopted comprehensive whistleblower laws including Ghana, South Korea, and Uganda. They are also being considered in Kenya and Rwanda. The European Court of Human Rights ruled in 2008 that whistleblowing was protected as freedom of expression.[43]
Federal employees could benefit from the Whistleblower Protection Act,[41] and the No-FEAR Act (which made individual agencies directly responsible for the economic sanctions of unlawful retaliation). Federal protections are enhanced in those few cases where the Office of Special Counsel will support the whistleblower's appeal to the Merit Systems Protection Board (MSPB). The MSPB rejects the vast majority of whistleblower appeals, however, as does the Federal Circuit Court of Appeals.[42] Efforts to strengthen the law have met with failure in recent years, but minor reforms seem likely. See, e.g.,Whistleblower Protection Enhancement Act of 2011, S. 743, H. Rep. 3289, 112th Cong. (2011).
Those who report a false claim against the federal government, and suffer adverse employment actions as a result, may have up to six years (depending on state law) to file a civil suit for remedies under the US False Claims Act (FCA).[40] Under a qui tam provision, the "original source" for the report may be entitled to a percentage of what the government recovers from the offenders. However, the "original source" must also be the first to file a federal civil complaint for recovery of the federal funds fraudulently obtained, and must avoid publicizing the claim of fraud until the US Justice Department decides whether to prosecute the claim itself. Such qui tam lawsuits must be filed under seal, using special procedures to keep the claim from becoming public until the federal government makes its decision on direct prosecution.
The patchwork of laws means that victims of retaliation need to be alert to the laws at issue to determine the deadlines and means for making proper complaints. Some deadlines are as short as 10 days (for Arizona State Employees to file a "Prohibited Personnel Practice" Complaint before the Arizona State Personnel Board; and Ohio public employees to file appeals with the State Personnel Board of Review). It is 30 days for environmental whistleblowers to make a written complaint to the Occupational Safety and Health Administration (OSHA). Federal employees complaining of discrimination, retaliation or other violations of the civil rights laws have 45 days to make a written complaint to their agency's equal employment opportunity (EEO) officer. Airline workers and corporate fraud whistleblowers have 90 days to make their complaint to OSHA. Nuclear whistleblowers and truck drivers have 180 days to make complaints to OSHA. Victims of retaliation against union organizing and other concerted activities to improve working conditions have six months to make complaints to the National Labor Relations Board (NLRB). Private sector employees have either 180 or 300 days to make complaints to the federal Equal Employment Opportunity Commission (depending on whether their state has a "deferral" agency) for discrimination claims on the basis of race, gender, age, national origin or religion. Those who face retaliation for seeking minimum wages or overtime have either two or three years to file a civil lawsuit, depending on whether the court finds the violation was "willful."
Investigation of retaliation against whistleblowers under 20 federal statutes falls under the jurisdiction of the Office of the Whistleblower Protection Program[36] of the United States Department of Labor's[37] Occupational Safety and Health Administration (OSHA).[38] New whistleblower statutes enacted by Congress which are to be enforced by the Secretary of Labor are generally delegated by a Secretary's Order[39] to OSHA's Office of the Whistleblower Protection Program (OWPP).
Another US law that specifically protects whistleblowers is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund Law) (1980), and the Clean Air Act (1990). Similar employee protections enforced through OSHA are included in the Surface Transportation Assistance Act (1982) to protect truck drivers, the Pipeline Safety Improvement Act (PSIA) of 2002, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), and the Sarbanes–Oxley Act, enacted on July 30, 2002 (for corporate fraud whistleblowers).
The first US law adopted specifically to protect whistleblowers was the 1863 United States False Claims Act (revised in 1986), which tried to combat fraud by suppliers of the United States government during the Civil War. The act encourages whistleblowers by promising them a percentage of the money recovered or damages won by the government and protects them from wrongful dismissal.[35]
In the United States, legal protections vary according to the subject matter of the whistleblowing, and sometimes the state in which the case arises.[33] In passing the 2002 Sarbanes–Oxley Act, the Senate Judiciary Committee found that whistleblower protections were dependent on the "patchwork and vagaries" of varying state statutes.[34] Still, a wide variety of federal and state laws protect employees who call attention to violations, help with enforcement proceedings, or refuse to obey unlawful directions.
Whistleblowing in the U.S. is affected by a complex patchwork of contradictory laws.
In cases where whistleblowing on a specified topic is protected by statute, U.S. courts have generally held that such whistleblowers are protected from retaliation.[32] However, a closely divided U.S. Supreme Court decision, Garcetti v. Ceballos (2006) held that the First Amendment free speech guarantees for government employees do not protect disclosures made within the scope of the employees' duties.
Under most federal whistleblower statutes, in order to be considered a whistleblower in the United States, the federal employee must have reason to believe his or her employer has violated some law, rule or regulation; testify or commence a legal proceeding on the legally protected matter; or refuse to violate the law.
The United Kingdom (UK) Government's Department of Business, Innovation and Skills (BIS) initiated a Whistleblowing Commission in October 2013 to explore whether there are any other aspects of the law governing whistleblowing which may not be protecting whistleblowers OR encouraging them to come forward about wrongdoing. The UK Government are endeavouring to encourage a cultural change on the workplace so that employees can feel confident enough to air concerns without fear of reprisal. Recognizing that the Public Interest Disclosure Act (PIDA) 1998 is more concerned with detriment after the whistleblowing event, the Whistleblowing Commission is particularly concerned with additional whistleblower protections that may be instituted from the very outset, or even from BEFORE the initial disclosure of wrongdoing, through a Whistleblower Registration Scheme overseen by an independent body. Recommendations and Guidelines across all industrial and governmental sectors are due publication in Spring 2014.
The draft does not improve on protection against dismissal for employees who report irregularities to their employer.[31] The amendment does not provide for employees anonymously filing their observations of irregularities.
Article 321aquarter provides that an employee may exceptionally directly report to an authority. Exceptions apply in cases
The Swiss Council of States agreed on a draft amendment of the Swiss Code of Obligations in September 2014. The draft introduces articles 321abis to 321asepties, 328(3), 336(2)(d).[30] An amendment of article 362(1) adds articles 321abis to 321asepties to the list of provisions that may not be overruled by labour and bargaining agreements. Article 321ater introduces an obligation on employees to report irregularities to their employer before reporting to an authority. An employee will, however, not breach his duty of good faith if he reports an irregularity to an authority and
The Netherlands has measures in place to mitigate the risks of whistleblowing: the whistleblower advice centre (Adviespunt Klokkenluiders) offers advice to whistleblowers, and the Parliament recently passed a proposal to establish a so-called house for whistleblowers, to protect them from the severe negative consequences that they might endure (Kamerstuk, 2013). Dutch media organisations also provide whistleblower support; on 9 September 2013 [28] a number of major Dutch media outlets supported the launch of Publeaks, which provides a secure website for people to leak documents to the media. Publeaks is designed to protect whistleblowers. It operates on the GlobaLeaks software developed by the Hermes Center for Transparency and Digital Human Rights, which supports whistleblower-oriented technologies internationally.[29]
The government of Ireland committed to adopting a comprehensive whistleblower protection law in January 2012. The bill will reportedly cover both the public and private sectors.[27]
The Government of India has been considering adopting a whistleblower protection law for several years. In 2003, the Law Commission of India recommended the adoption of the Public Interest Disclosure (Protection of Informers) Act, 2002.[23] In August 2010, the Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was introduced into the Lok Sabha, lower house of the Parliament of India.[24] The Bill was approved by the cabinet in June, 2011. The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was renamed as The Whistleblowers' Protection Bill, 2011 by the Standing Committee on Personnel, Public Grievances, Law and Justice.[25] The Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha on 28 December 2011.[26] and by the Rajyasabha on 21 February 2014. The Whistle Blowers Protection Act, 2011 has received the Presidential assent on May 9, 2014 and the same has been subsequently published in the official gazette of the Government of India on May 9, 2014 by the Ministry of Law and Justice, Government of India.
In Jamaica, the Protected Disclosures Act, 2011[22] received assent in March 2011. It creates a comprehensive system for the protection of whistleblowers in the public and private sector. It is based on the UK's Public Interest Disclosure Act.
PSIC’s current Commissioner is Mr. Mario Dion. Previously, he has served in various senior roles in the public service, including as Associate Deputy Minister of Justice, Executive Director and Deputy Head of the Office of Indian Residential Schools Resolution of Canada, and as Chair of the National Parole Board.
The Act also established the Public Servants Disclosure Protection Tribunal (PSDPT) to protect public servants by hearing reprisal complaints referred by the Public Sector Integrity Commissioner. The Tribunal can grant remedies in favour of complainants and order disciplinary action against persons who take reprisals.
Not all disclosures lead to an investigation as the Act sets out the jurisdiction of the Commissioner and gives the option not to investigate under certain circumstances. On the other hand, if PSIC conducts an investigation and finds no wrongdoing was committed, the Commissioner must report his findings to the discloser and to the organization’s chief executive. Also, reports of founded wrongdoing are presented before the House of Commons and the Senate in accordance with The Act. As of June 2014, a total of 9 reports have been tabled in Parliament.[21]
Mandated by the Public Servants Disclosure Protection Act (The Act), PSIC is a permanent and independent Agent of Parliament. The Act, which came into force on April 15, 2007, applies to most of the federal public sector, approximately 400,000 public servants.[20] This includes government departments and agencies, parent Crown corporations, the Royal Canadian Mounted Police and other federal public sector bodies.
The Office of the Public Sector Integrity Commissioner of Canada (PSIC) provides a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoings committed in the public sector. It also protects from reprisal public servants who have disclosed wrongdoing and those who have cooperated in investigations. The Office’s goal is to enhance public confidence in Canada’s federal public institutions and in the integrity of public servants.[19]
Whistleblowers Australia is an association for those who have exposed corruption or any form of malpractice, especially if they were then hindered or abused.[18]
There are also laws in a number of states.[17] The former NSW Police Commissioner Tony Lauer summed up official government and police attitudes as: "Nobody in Australia much likes whistleblowers, particularly in an organisation like the police or the government." Mr Lauer's comments are clearly at odds with public support for WikiLeaks.
Legal protection for whistleblowing varies from country to country and may depend on any of the country of the original activity, where and how secrets were revealed, and how they eventually became published or publicized. Over a dozen countries have now adopted comprehensive whistleblower protection laws which create mechanisms for reporting, investigate reports, and provide legal protections to the people who informed them. Over 50 countries have adopted more limited protections as part of their anti-corruption, freedom of information, or employment laws.[16] For purposes of the English WorldHeritage, this section emphasizes the English-speaking world and covers other regimes only insofar as they represent exceptionally greater or lesser protections.
Whistle-blowers who part ranks with their organizations have had their mental stability questioned, such as, for example, the NYPD veteran who alleged falsified crime statistics in his department and was forcibly committed to a mental institution.[15]
As a reaction to this many private organizations have formed whistleblower mobbing. It is an extreme form of workplace bullying wherein the group is set against the targeted individual.[14]
Although whistleblowers are often protected under law from employer retaliation, there have been many cases where punishment for whistleblowing has occurred, such as termination, suspension, demotion, wage garnishment, and/or harsh mistreatment by other employees. For example, in the United States, most whistleblower protection laws provide for limited "make whole" remedies or damages for employment losses if whistleblower retaliation is proven. However, many whistleblowers report there exists a widespread "shoot the messenger" mentality by corporations or government agencies accused of misconduct and in some cases whistleblowers have been subjected to criminal prosecution in reprisal for reporting wrongdoing.
There are examples of "early warning scientists" being harassed for bringing inconvenient truths about impending harm to the notice of the public and authorities. There have also been cases of young scientists being discouraged from entering controversial scientific fields for fear of harassment.[10]
Employees in academia, business or government might become aware of serious risks to health and the environment, but internal policies might pose threats of retaliation to those who report these early warnings. Private company employees in particular might be at risk of being fired, demoted, denied raises and so on for bringing environmental risks to the attention of appropriate authorities. Government employees could be at a similar risk for bringing threats to health or the environment to public attention, although perhaps this is less likely.[10]
Persecution of whistleblowers has become a serious issue in many parts of the world:
It is probable that many people do not even consider blowing the whistle, not only because of fear of retaliation, but also because of fear of losing their relationships at work and outside work.[9]
Whistleblowers are sometimes seen as selfless accountability; others view them as "traitors" or "defectors." Some even accuse them of solely pursuing personal glory and fame, or view their behavior as motivated by greed in qui tam cases. Some academics (such as Thomas Alured Faunce) feel that whistleblowers should at least be entitled to a rebuttable presumption that they are attempting to apply ethical principles in the face of obstacles and that whistleblowing would be more respected in governance systems if it had a firmer academic basis in virtue ethics.[7][8]
The third party service involves utilising an external agency to inform the individuals at the top of the organisational pyramid of misconduct, without disclosing the identity of the whistleblower. This is a relatively new phenomenon and has been developed due to whistleblower discrimination. International Whistleblowers is an example of an organisation involved in delivering a third party service for whistleblowers.
External whistleblowers, however, report misconduct to outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In some cases, external whistleblowing is encouraged by offering monetary reward. This is, however, an act of treason if one has signed non-disclosure agreements.
[6]
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Socialism, Occupational safety and health, Democracy, Slavery, Industrial relations
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