Talk:Whistleblower protection in the United States

Legal acts

United States

Ceballos case and the Whistleblower Protection Act of 2007

The US Supreme Court dealt what many considered a major blow to government whistleblowers when, in the case of Garcetti v. Ceballos, 04-5, 547 US 410, it ruled that government employees did not have protection from retaliation in performance evaluations by their employers under the First Amendment of the Constitution if the alleged speech was produced as part of his/her duties. Ceballos did not dispute that his memo was made as part of his official duties. Whistleblowers who want to pursue a federal case under the First Amendment must now always claim the memos and writings made are part not only of the official duty but of a citizen's opinion and discourse of public relevance. This can be done by alleging that the cause for retaliation is not the text of the memo but the ideas surrounding it. In the case of Ceballos he could have argued that his protected speech was his concept of strict adherence to the rule of law.

The free speech protections of the First Amendment have long been used to shield whistleblowers from retaliation by whistleblower attorneys. In response to the Supreme Court decision, the House of Representatives passed H.R. 985, the Whistleblower Protection Act of 2007. President George W. Bush, citing national security concerns, promised to veto the bill should it be enacted into law by Congress. The Senate's version of the Whistleblower Protection Act (S. 274), which has significant bipartisan support, was approved by the Senate Committee on Homeland Security and Governmental Affairs on June 13, 2007. However, it has yet to reach a vote by Senate as a hold has been placed on the bill by Senator Tom Coburn (R-OK). According to the National Whistleblower Center, Coburn's hold on S. 274 has been done to further President Bush's agenda.

In December 2010, the Senate passed enhanced protections for government employees and contractors who report cases of waste, fraud and abuse.

California False Claims Act

The California False Claims Act protects whistleblowers from retaliation from their employer under a section entitled: "Section 12653. Employer interference with employee disclosures." Under this section, employers may not make rules that prevent an employee from disclosing information to the government in furtherance of a false claims action, an employer may not discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because he or she has disclosed information to the government.

Conscientious Employee Protection Act (CEPA)

CEPA, New Jersey's whistleblower law, prohibits an employer from taking any retaliatory action against an employee because the employee does any of the following:

• Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation issued under the law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
• Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation issued under the law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into quality of patient care; or
• Objects to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes: is in violation of a law, or a rule or regulation issued under the law, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; is fraudulent or criminal; or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

"Concerning protection for health care workers who report patient safety information" in Colorado

"Patient safety is of paramount importance in the delivery of health care to Colorado citizens. A patient is at his or her safest when a health care worker has the right to speak out on the patient's behalf without fear of reprisal or retaliation. Health care providers recognize that, in order to deliver the highest quality health care, it is imperative that all health care workers have the right to report patient safety concerns and to advocate for a patient's well being without the risk of disciplinary action or loss of employment."

Medical residents and extending whistleblower protection to enforce safety, health, and maximum work hour standards

Other proposals have been made to extend federal whistleblower protection to medical residents working at health care facilities, hospitals, and health care providers, as an internal means to ensure that certain patient hospital and health standards are being effectuated, including enforcing maximum hour guidelines for medical residents

Best International Practices For Organizations

All organizations, whether public, private, or non-profit (including governmental) should, as a best practice, adopt a robust whistleblower system to induce its employees to internally report illegal or excessively risky activity directly to its board of directors or trustees. Without a robust whistleblower system, directors/trustees of the organization may fail in their oversight responsibilities. A robust whistleblower system encourages internal reporting of misconduct so as to permit it to be corrected. It is particularly important in countries (such as the United States) which provide significant financial rewards to whistleblowers who externally report illegal behavior to government entities.

There have been numerous examples of boards of directors/trustees who have been uninformed as to problems in the organization, even though lower level employees knew about these problems. These boards were misled because they relied primarily on top management and the auditors for their information.

References

more

Wall Street

[[:File:Whistle Blowers Occupy Wall Street 2011 Shankbone.JPG|thumb|318px|A woman protesting the state of protections for whistleblowers of banking fraud at the Occupy Wall Street rally, September 17, 2011]]

Securities whistleblowers are provided incentives and protection by the Dodd–Frank Wall Street Reform and Consumer Protection Act (2010). The SEC Office of the Whistleblower offers whistleblowers significant incentives and increases protection for whistleblowers in the SEC whistleblower program. This legislation authorizes the SEC to reward those who provide information concerning violations of the federal securities laws at companies that are required to report to the SEC.

Further, the Dodd-Frank Act strengthens the whistleblower protection provisions of the False Claims Act, and contains one of the strongest confidentiality provisions for whistleblowers ever enacted. For the first time, whistleblowers will be allowed to initially report fraud anonymously by filing a claim through an attorney.

Additionally, the law prohibits employers from retaliating against whistleblowers. Employers may not fire, demote, suspend, threaten, harass, or discriminate against a whistleblower. The Dodd-Frank Act expands the reach of whistleblower protections provided under the Sarbanes-Oxley Act of 2002 to include employees of public companies as well as employees of its private subsidiaries and affiliates. Whistleblowers who suffer from employment retaliation may sue for reinstatement, back pay, and any other damages incurred.

The Office of the Whistleblower (SEC)

The SEC Office of the Whistleblower was formed as part of the Dodd-Frank Act. They help handle whistleblower tips and complaints, and provide guidance to the Enforcement Division staff. They will help the Commission determine the size of awards for each whistleblower. Further, They assist whistleblowers by promoting the program, providing guidance and answering questions about the program.

The Whistleblower Program (US Commodity Futures Trading Commission)

The CFTC’s whistleblower program – which was created by the Dodd-Frank Act – allows for the payment of monetary awards to eligible whistleblowers, and provides anti-retaliation protections for whistleblowers who share information with or assist the CFTC.

US military

The Military Whistleblower Protection Act protects the right of members of the armed services to communicate with any member of Congress (even if copies of the communication are sent to others).

US law enforcement

Since the early 1970s, former NYPD officer, Frank Serpico, became law enforcement's best known whistleblower when he testified before the Knapp Commission in 1971. Serpico was shot earlier that year during a Brooklyn drug raid in which his colleagues failed to protect him, but survived, although he remains partially deaf from the bullet wound. Serpico testified to the Knapp Commission in December, 1971 and retired in June 1972 on a disability pension, living abroad until his quiet return to the U.S. in 1980, when he moved upstate, dividing his time between a technology-free rural cabin, a Brooklyn apartment and lecturing across the U.S. against police corruption. During the 1980s, Joe Sanchez became the NYPD's best known whistleblower and was framed for various crimes since 1983 after a 1982 drug bust where he discovered one of the lieutenants was receiving money and sexual favors in exchange for silence and inactivity. Sanchez was eventually freed of all the charges against him but in 1988, he was not reinstated when one of two New York State Supreme Court justices ruled in favor of his dismissal from the NYPD. Michael Dowd became the NYPD's next best known whistleblower in the 1990s when he was arrested in 1992 for assaulting citizens, extortion from drug dealers, selling drugs and endangering dealers by delivering them to their rivals for extralegal violence. Dowd testified to the Mollen Commission in 1993 about his own and his colleagues' activities, was convicted in 1994 and sentenced to 14 years but paroled in 2004 after serving ten and was sent to a Brooklyn halfway house, ironically in one of the same neighborhoods that he used to patrol, under requirements of being suitably employed, but is unable to find any work because of his publicity and record. Ted Briseno became the Los Angeles Police Department's best-known whistleblower during the 1990s by testifying against his fellow officers in the first (state-level) Rodney King trial in 1992. Because of his testimony in violation of law enforcement's unofficial Blue code of silence, however, Briseno couldn't find law enforcement employment anywhere. His property records now show him living in Illinois.

Tax fraud

The Internal Revenue service rewards whistleblowers with a percentage of the tax money and penalties recovered with the information provided. The Tax Relief and Health Care Act of 2006 pays whistlblowers up to 30% of any tax revenue recouped by the IRS as a result of a whistleblower's information.

In September 2012, the IRS Whistleblower Office awarded Bradley Birkenfeld $104 million as a whistleblower for his revelations that the Swiss bank UBS abetted tax evasion by 19,000 American clients. The award was the largest whistleblower payout in history, to either an individual or a group. The IRS explained its decision by citing Birkenfeld’s “exceptional cooperation” and the “breadth and depth” of the information he provided, all of which led to “unprecedented actions” against UBS. The IRS and the U.S. Department of Justice used Birkenfeld's information to negotiate a $780 million settlement with UBS in 2009. Under that deal, UBS admitted to helping U.S. clients cheat on their taxes. The bank later turned over the names of nearly 5,000 U.S. clients suspected of tax evasion. IRS amnesty programs have since collected $5 billion from people who participated in UBS’s illegal scheme based on the information provided by Birkenfeld.

References