by Stephen Kohn
This process gives employees a “safe harbor” for making disclosures, and the right to challenge, in court, the government’s attempt to keep its misconduct secret.
The FBI WPA
The FBI also has a special law that covers its whistleblowers. This law is stronger than the Intelligence Community Whistleblowers Protection Act, but it’s still riddled with problems. Like NSA and CIA employees, FBI agents were also excluded from protection under the 1978 Civil Service Reform Act. However, the FBI Whistleblower Protection Act required the president of the United States to ensure that FBI agents have rights “consistent with” the rights of other federal employees. This mandate was not included in the Intelligence Agency law, and has resulted in much stronger remedies for FBI agents than their counterparts working in the CIA or NSA.
The FBI WPA was originally passed in 1978 and amended in 1989 and 2016. Between 1978 and 1998, all presidents ignored the law until FBI Supervisory Special Agent Frederic Whitehurst sued President Clinton and demanded that it be implemented. Whitehurst had been removed from his position as the FBI’s top explosives expert after he exposed widespread abuses in the Bureau’s crime lab, including misconduct in the first World Trade Center and the Oklahoma City bombing cases. As a result of the lawsuit, President Bill Clinton issued a directive requiring the Attorney General to implement the FBI WPA and publish administrative protections for FBI employees. These procedures, published as Title 28 CFR Part 27, permit FBI employees to make disclosures to the Justice Department’s Inspector General or the Office of Professional Responsibility, the Director of the FBI, his or her supervisor, and other designated offices. If they are retaliated against, the DOJ Inspector General must investigate their claims, and they can request an administrative hearing. Remedies include reinstatement, back pay, and attorney fees and costs.
Title VII and Privacy Act Remedies for National Security Whistleblowers
Federal antidiscrimination laws also provide all federal employees, including intelligence agency employees, an avenue for protection. Intelligence agency employees can file complaints under Title VII of the Civil Rights Act (prohibition against discrimination/retaliation on the basis of race, sex, color, national origin, age, disability, or religion) and have the same basic rights as all employees, including the right to a jury trial in federal court, compensatory damages, reinstatement, and attorney fees.
Finally, all national security employees are also covered under the Privacy Act and can file administrative and judicial complaints if an agency improperly maintains files or discloses records in retaliation for protected speech. When Congress debated the Privacy Act, sponsors of the bill pointed to the Daniel Ellsberg case as a major justification for enacting the law. They wanted to make sure that whenever the government creates records on its citizens (such as creating records based on information learned from the illegal break-in at Ellsberg’s psychiatrist’s office), the citizens have a means to obtain copies of those records, file a lawsuit to have the records corrected, and obtain damages if the records caused them economic harm. The Act also prohibits the government from creating records describing a citizen’s exercise of his or her First Amendment rights. The Privacy Act is available to all Americans, including persons who work at intelligence agencies.
In 2012 the Supreme Court narrowed damages available to victims of Privacy Act violations to “economic” harm caused by the privacy breaches. Damages for emotional distress or punitive damages are not available under the Act. The law can still be used to obtain access to documents and require an agency to “correct” inaccurate records, but the ability to obtain monetary relief for violations of privacy is extremely limited.
National security whistleblowers have limited rights. Compared with the protections afforded other government employees, or employees who work in the private sector, they are working in the Dark Ages of whistleblower law.
PRACTICE TIPS
• The major laws governing federal employees are the Whistleblower Protection Act, at 5 U.S.C. §§ 2302 (general law), 1214–15 (OSC procedures), and 1221; the Protection of Intelligence Community Whistleblowers Act, 50 U.S.C. § 3234; and the FBI Whistleblower Protection Act, 28 CFR Part 27.
• Under 50 U.S.C. 33412(b)(7), whistleblowers have a limited right to challenge denial of a security clearance.
• The Merit Systems Protection Board website (www.mspb.gov) has special Q&As on the Whistleblower Protection Act and links to the regulations that govern discovery, hearings, filing requirements, and how to participate in MSPB proceedings.
• The website for the U.S. Office of Special Counsel (https://osc.gov) has detailed information on filing a whistleblower complaint and how to make a confidential whistleblower disclosure about government abuse.
• The Office of the Director of National Intelligence publishes on its website a notice, “Making Lawful Disclosures,” with information on how intelligence community whistleblowers can report violations of law. See www.dni.gov/index.php/about-this-site/contact-the-ig/making-lawful-disclosures.
• The Equal Employment Opportunity Commission (EEOC) has a comprehensive website that fully explains rules governing federal employee discrimination or retaliation cases. See, https://www.eeoc.gov.
• How to pursue a “mixed case” combining a discrimination claim with a whistleblower claim (and obtaining the right to have a whistleblower claim heard in federal court) is explained in the case of Bonds v. Leavitt, 629 F.3d 369 (4th Cir 2011).
• Erickson v. EPA, 1999-Clean Air Act Case No. 2 (U.S. Department of Labor, Office of Administrative Review Board, May 31, 2006) (discussing the right of federal employees to use environmental whistleblower laws).
RULE 15Make Sure Disclosures Are Protected
What if an employee tells the boss about a problem, but nothing is fixed? What if an employee is asked to violate a law? What if an employee thinks the company will cover up wrongdoing? When is it time to tell the government—or the press—about the allegations? Will these disclosures be protected?
Before looking at the specific legal authorities that may provide protection for an employee’s whistleblowing, remember that Freedom of Speech is part of the American credo. The fundamental right to expose wrongdoing, criminality, or corruption was imbedded into the heart of the Constitution as one of the foundations of the American Way.
On June 8, 1789, James Madison stood before the First Congress of the United States of America and proposed that the Constitution be amended to include a Bill of Rights. His words were clear, and the intent behind what would eventually be incorporated into the Constitution as the First Amendment was unmistakable:
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrates, for redress of their grievances.
But Madison does not currently sit in the House of Representatives, and many judges have never even read these words. Madison’s vision of “freedom of speech” is not part of modern-day corporate culture. The schism between whistleblowing celebrated in Hollywood movies and the reality of the legal protections for this speech is deep and wide.
Understanding Protected Disclosures
A shortcoming of the piecemeal approach to whistleblower protection is the confusion surrounding what is a protected disclosure. There is no uniform definition of a “protected disclosure.” Each statute contains its own unique rules defining protected activities, and courts have not been consistent in applying these rules. The judicial confusion over whether or not to protect employees whose disclosures were made to their managers, or were part of their “official duties,” simply highlights this legal headache facing employees who must decide whether or not to “do the right thing.”
“It is the right, as well as the duty, of ever
y citizen . . . to communicate to the executive officers any information which he has of the commission of an offense against those laws. . . . The right does not depend upon any of the amendments to the Constitution, but arises out of the creation and establishment by the Constitution itself of a national government.”
—In re Quarles and Butler U.S. Supreme Court (1895)
The basic rule for ensuring that disclosures are protected seems simple on its face: When preparing to make a whistleblower disclosure always check the requirements of the law to determine whether there are specific disclosure rules or limitations that must be met in order to be protected. But in practice, this rule is not so simple. Most employees engage in protected activities first and ask questions about the law only when they suspect retaliation. Most employees utilize common sense when making a disclosure, but the law does not always conform to common sense and can be unforgiving to an employee who raised concerns in good faith, but to the wrong office.
FOLLOW STATUTORY MANDATES
Some laws contain specific requirements on how to make a disclosure that will be protected. The four laws that are directly implicated in this rule are the qui tam provisions of the False Claims Act, the Internal Revenue Code, the Securities Exchange Act, and the Commodity Exchange Act. Each of these four very powerful whistleblower protection laws, either by statute or regulation, contains very specific rules on how to file a claim in order to qualify for a reward. These rules must be strictly followed.
Not only do these laws specify filing procedures, they also contain confidentiality rules and other rules of conduct to which a whistleblower must adhere. For example, once a FCA claim is filed in court, the claim is under a court-ordered “seal.” While the case is under seal, the whistleblower cannot publicly discuss the case. The law requires the whistleblower to keep the FCA claim confidential. By choosing this remedy, the whistleblower also chooses to follow the filing requirements of that law.
REPORTS TO FEDERAL LAW ENFORCEMENT
Most whistleblower laws explicitly protect filing claims with federal law enforcement agencies. Reasonable doubt that existed on this matter was cleared up in 2002, when Congress amended the obstruction of justice statute and criminalized retaliation against any person who provided truthful information to federal law enforcement concerning the “possible” violation of any federal law.
The terms of the 2002 amendment to the obstruction of justice law are clear, broad, and applicable to all Americans:
Whoever knowingly, with the intent to retaliate takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned for not more than 10 years, or both.
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress permitted employees retaliated against for making disclosures protected under this obstruction of justice law to file a civil claim for damages. In addition to the generalized protection in the Dodd-Frank Act, every federal whistleblower law also should be interpreted as protecting disclosures made to federal law enforcement agencies.
REPORTS TO CONGRESS OR A LEGISLATIVE BODY
The earliest whistleblowers in American history risked their careers, reputations, and even their freedom by disclosing abuses of the commander of the American Navy to the Continental Congress. Their spokesperson testified before a committee of the Congress in 1777. This subsequently triggered the enactment of America’s first whistleblower law one year later.
The right to “petition” Congress for a redress of grievances was unquestionably recognized as a fundamental human right by the Founding Fathers, and it was explicitly incorporated into the First Amendment of the U.S. Constitution.
Years later, in the early 1900s Presidents Theodore Roosevelt and William Taft battled with Congress over whistleblower rights. In this instance federal workers were providing information to Congress regarding abuses of power. Roosevelt and Taft wanted to silence them and implemented various “gag” rules prohibiting federal employees from blowing the whistle to Congress. These gag rules triggered a major dispute between the two branches of government. After strenuous debates on Capital Hill, in 1912 Congress exercised its authority and rebuked President Taft. Congress passed the Lloyd-LaFollette Act, which prohibited the president from retaliating against federal employees who provided information to any member or committee of Congress. The law remains in effect today and is commonly relied upon by federal whistleblowers.
Other whistleblower laws explicitly reference an employee’s right to provide information to Congress, such as the Sarbanes-Oxley Act. However, even without these specific statutory references, there are no known modern cases under either federal or state whistleblower laws in which the firing of an employee for lawfully providing information to Congress (or a State Legislature) was upheld.
Disclosures to Congress often provide whistleblowers with a key ally. Perhaps the elected representative is willing to investigate the legitimacy of an employee’s allegations and demand that an agency not fire the whistleblower? It is one thing for an employee to personally stand up for his or her rights; it is an entirely separate matter when a company learns of a formal congressional investigation or gets a letter from a member of Congress warning them against retaliation.
DISCLOSURES TO THE UNITED STATES ATTORNEY GENERAL
In 1863 Congress enacted the False Claims Act. Amended in 1986, this act is the premier whistleblower law. The law requires whistleblowers to make a formal disclosure of substantially all their allegations with the U.S. attorney general. These disclosures are protected. Unlike other whistleblower laws, the FCA mandates that employees disclose their concerns to the government before filing a lawsuit. They must make a disclosure to the attorney general at the time they file their lawsuit.
Regardless of whether you file an FCA claim or not, raising allegations of wrongdoing with the attorney general is always a safe bet as to a protected agency for blowing the whistle. The attorney general has a responsibility to enforce federal laws, so why not file a claim with the top cop?
TESTIFYING IN COURT
During the post–Civil War Reconstruction period, Congress was concerned about citizens’ ability, especially those from the South, to protect their federal rights. Among the laws enacted, in an effort to address this concern, was the Civil Rights Act of 1871. This law contained numerous provisions applicable to modern-day whistleblowing, including a provision known as Section 1985. This provision prohibited retaliation against witnesses in federal court proceedings. In 1996 the U.S. Supreme Court applied this provision to whistleblowers, permitting an employee to file a damages lawsuit for wrongful termination after being fired for testifying. Court testimony is also covered under most (if not all) other federal and state whistleblower laws, provided the testimony concerns the subject matters protected under the specific statute.
FILING A CLAIM OR INITIATING A PROCEEDING
The act of filing a whistleblower claim in court, with a regulatory agency or with a labor-rights department, such as the Department of Labor or the Equal Employment Opportunity Commission, is considered protected activity. Courts recognize that without the right to freely allege retaliation by filing a claim, no employee could or would ever blow the whistle. Additionally, federal whistleblower laws protect employees who “initiate proceedings” to enforce regulatory requirements.
REFUSING TO VIOLATE A LAW
Most, if not all, state courts recognize the common law “public policy exception” to the “termination at will” doctrine that prohibits firing workers who reasonably refuse to violate a law. Similar protections are also found under the majority of federal whistleblower laws.
The reason for this tie-in between a refusal to perform illegal work and whistleblower protections is simple. Many whistleblower cases originate with a refusal.
For example, if an employee complains about pressure from management to falsely certify an audit report or quality assurance certifications, this complaint should be protected. Most occupational health and safety laws, including the federal Occupational Safety and Health Adminstration, also provide protection for employees who refuse to engage in hazardous work.
There is, however, one very important caveat regarding work refusals. Should management demonstrate that the requested conduct is legal or safe, the right to refuse to perform that work terminates, and an employee can thereafter be disciplined for failing to perform the task.
DISCLOSING A VIOLATION OF LAW
Most, if not all, federal and state whistleblower laws protect employees who disclose violations of law to the proper authorities. But four major whistle-blower laws require such disclosures to the government before an employee can qualify for a reward. The qui tam provisions of the False Claims Act, the Internal Revenue Code, Commodity Exchange Act, and the Securities Exchange Act all require specific and detailed disclosures to the government to qualify for a reward. Each law sets forth the specific disclosure requirements, i.e., who a disclosure must be filed with and what type of information must be disclosed to qualify as a “whistleblower.” The FCA, Commodity, and Securities qui tam laws all prohibit retaliation against employees who file such claims.
