The Whistleblower Protection Act of 1989 - Research Paper Example

Outline The Whistleblower Protection Act of 1989 Thesis: The Whistleblower Protection Act of 1989 is vital in the protection of federal whistleblowers or government employees who report any misconduct by a federal agency, providing the only means by which the public can learn of misconduct at high business and government levels. I. Abstract II. Introduction A. Definitions 1. A whistleblower 2. The Whistleblower Protection Act of 1989 B. Example of a famous whistleblower III. Background Information IV. Aim of enacting the Whistleblower Protection Act of 1989 A. Improving Federal employees’ rights protection B. Ending retaliations C. To aid in the eradication of unlawful activity within the government V. Violation of the Whistleblower Protection Act A. If a federal agency fails to take or takes (or make threats to take or fail to take) a personnel action regarding any applicant or employee owing to any information disclosure by the applicant or employee B. Examples of illegal reprisals or sanctions 1. Undue discipline 2. Hours or pay reductions 3. Denying promotion or overtime 4. Blacklisting 5. Reassignment 6. Benefits denial 7. Intimidation 8. Demotions 9. Firings VI. Importance of the Whistleblower Protection Act A. Protects government employees who engage in occupational speech pursuant to their official job duties from retaliation by employer B. Aids in removing the disincentive to disclose unlawful activities VII. The Whistleblower Protection Act’s protections A. Pertinent when a personnel action is carried out owing to a protected disclosure that a covered employee makes. B. Covered employees 1. Former government employees 2. Current employees 3. Employment applicants to executive branch of government positions in both the excepted and the competitive service 4. Senior Executive Service positions C. What the whistleblower statute does not protect 1. Those positions that, due to their confidential policy-advocating, policy-making or policy-determining character, are excepted from the competitive service 2. Any positions that the President exempts founded on a determination that it is essential and warranted by good administration conditions. 3. Federal workers under a. The employment of the Postal Rate Commission or the Postal Service b. The Central Intelligence Agency c. The Defense Intelligence Agency d. The Federal Bureau of Investigation e. The National Security Agency f. The Government Accountability Office g. The National Imagery and Mapping Agency h. Any other executive body that the President determines chiefly carries out counter-intelligence or foreign intelligence activities D. Proceedings or forums within which the whistleblower protections may be raised 1. Employee pleas to the Merit Systems Protection Board (MSPB) 2. Office of Special Counsel’s instituted actions 3. Individually maintained Rights of Action before the MSPB 4. Employee’s-raised grievances under negotiated grievance procedures VIII. Protection of whistleblowers in the private sector IX. Whistleblower protection in the Sarbanes-Oxley Act of 2002 X. Conclusion A. Analytical summary B. Thesis reworded C. Concluding statement Abstract Government recruits who make disclosures regarding fraud, corruption or peril to public safety have had the door to justice closed in their faces for a long time. More often than not, they do so at great cost to their personal lives as well as careers. In the United States of America, government officials have engaged in intense war to punish and silence whistleblowers. In several instances, instead of maintaining the law, the courts have acted as their partners in crime. Introduction A whistleblower is a person who makes a disclosure that evidences improper or illegal activities in an employment setting (Whitaker, P1). On the other hand, King defines the Whistleblower Protection Act of 1989 as a United States of America’s federal law that protects federal whistleblowers or government employees who report any misconduct by a federal agency. An example of a famous whistleblower was Jeffrey Wigand, Brown & Williamson’s former research and development vice president in 1966, who disclosed that cigarette companies’ executives were aware of the fact that cigarettes were addictive and increased the amount of nicotine deliberately to make them even more addictive (King, para5). The Whistleblower Protection Act/WPA was enacted in 1989, following apparent weaknesses in the 1978 Civil Service Reform Act, which was an earlier attempt to protect whistleblowers. This law led to the creation of the Office of Special Counsel, which investigates complaints from government employees that they received punishment after reporting about abuse, fraud or waste in their agencies to Congress. This office has jurisdiction over whistleblower reprisal allegations that the United States Securities and Exchange Commission employees make. The Congress passed the Act with the intention of strengthening and improving Federal employees’ rights protection, to end retaliations and to aid in the eradication of unlawful activity within the government. It mandates that workers should not go through adverse consequences because of personnel practices that are prohibited and establishes that the Office of Special Counsel’s primary role is protecting workers, particularly whistleblowers, from forbidden personnel practices; that the Special Counsel Office shall act in the interests of workers who seek assistance from it and that while chastising those who commit outlawed personnel practices may be used as a way of aiding the achievement of that goal, the paramount consideration remains the protection of persons who are the subject of illegal personnel practices (Whitaker, P1). A federal agency is said to have violated the Whistleblower Protection Act if it fails to take or takes (or make threats to take or fail to take) a personnel action regarding any applicant or employee owing to any information disclosure by the applicant or employee that he/she reasonably believes show an infringement of law, regulation or rule, a gross waste of funds, a substantial and specific danger to public safety or health and an abuse of authority or gross mismanagement (U.S. Securities and Exchange Commission, Para1). Illegal reprisals or sanctions can include undue discipline, hours or pay reductions, denying promotion or overtime, blacklisting, reassignment, benefits denial, intimidation, demotions and firings (King, para3). The Act is very important since the Supreme Court of the United States has held that employees of the government who engage in occupational speech pursuant to their official job duties receive no protection under the First Amendment of the Constitution from retaliation by employer. This ruling was in the case Garcetti v. Ceballos. It is also important in that it aids in removing the disincentive to disclose unlawful activities (King, para4). The Whistleblower Protection Act’s protections are pertinent when a personnel action is carried out owing to a protected disclosure that a covered employee makes. Generally regarded as covered employees are former employees, current employees or employment applicants to executive branch of government positions in both the excepted and the competitive service, in addition to Senior Executive Service positions. However, the whistleblower statute does not protect those positions that, due to their confidential policy advocating, policy-making or policy-determining character, are exempted from the competitive service and any positions that the President exempts founded on a determination that it is essential and warranted by good administration conditions. In addition, the statute does not apply to federal workers under the employment of the Postal Rate Commission or the Postal Service, the Central Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency and the Government Accountability Office. It also does not apply to the National Imagery and Mapping Agency and any other executive body that the President determines chiefly carries out counter-intelligence or foreign intelligence activities (Strohm, para14). Those whistleblowers who have been exposed to such personnel actions as reassignment, transfer, suspension, removal or other related actions carried out as punishment, can as a defense, raise whistle blowing before a type of administrative court known as the United States Merit Systems Protection Board. If a whistleblower were subject to personnel actions that are not appealable to the board, he or she would be required to either rely on the Special Counsel Office to bring his or her claims before the board or may begin an independent right of action before the board. This independent right of action permits the board to tackle just whistleblower claims of employees. The United States Court of Appeals for the Federal Circuit reviews the board’s decisions. A whistleblower has a right to a number of remedies, compensatory damages and back pay included. These whistleblower protection laws authorize the Special Counsel Office to begin punitive actions against federal officials who hit back against whistleblowers. Several federal officers have been suspended or dismissed under this authority. Additionally, the Special Counsel may require an agency’s head to act in response to the whistleblower’s allegations (Whitaker, P1). In general, whistleblower protections may be raised within the following four proceedings or forums: employee pleas to the Merit Systems Protection Board (MSPB) of an adverse action of an agency in opposition to an employee; Office of Special Counsel’s instituted actions; individually maintained Rights of Action before the MSPB; and employee’s-raised grievances under negotiated grievance procedures. An employee only needs to prove that protected revelations contributed to the personnel action supposed to have been carried out in retaliation. Once a worker demonstrates such a connection, the agency must prove, using convincing and clear proof, that even if the employee did not make a law-protected disclosure, it would have taken the same action. In addition, the Act also rejects a number of the U.S. Court of Appeals decisions for the Federal Circuit that Congress considered were disproportionately restrictive interpretations of the law (Whitaker, P1). Apart from defending whistleblowers in the public sector, a number of state statutes, several of which were developed after the Whistleblowers Protection Act or the Reform Act, also defend whistleblowers in the private sector who report various violations of federal safety, health and environmental laws. Additionally, in response to misconduct and fraud by large corporations as well as their attorneys and accountants, there was the inclusion of whistleblower protection in the Sarbanes-Oxley Act of 2002 by Congress. This is a law that addresses this misconduct. Section 1107 of the Sarbanes-Oxley Act considers retaliating against a whistleblower deliberately as a federal crime and if an employer is convicted of retaliation, he or she can be fined or be imprisoned for up to 10 years or both (Hunter, p1). Conclusion Whistleblowers protect society from dangerous and unsafe conditions as well as from waste and misconduct. During the Reform Act passage, whistle blowing was a disdained activity, often punished officially. Currently, Congress strongly approves of it regarding it as a civic responsibility fulfillment, no longer as a disloyal act, and has often taken action in order to protect whistleblowers from retaliation. International consensus for the protection of whistleblowers has also grown with many countries in South America, Asia, Africa and Europe adopting provisions applying the protection of whistleblowers to large sections of society. There has been the inclusion of protections of whistleblowers in a number of international instruments such as codes of conduct regulations of international institutions and multinational treaties. The Whistleblower protection Act of 1989 is very important in that it encourages potential federal agencies’ whistleblowers to come forward. Often, these whistleblowers provide the only means by which the public can learn of misconduct at high levels of business and government. Additionally, it supports the freedom of expression right, which is the foundation of democratic government and of democratic accountability. Works cited Hunter, J.J. (2003). The Whistleblower Provisions of the Sarbanes-Oxley Act of 2002. Retrieved 28th February, 2010 from http://www.bna.com/bnabooks/ababna/eeo/2003/hunter.doc King, I. (2009). Define Whistleblower. Retrieved 27th February, 2010 from http://www.ehow.co.uk/about_5398474_define-whistleblower.html Strohm, C. (2006). Report Finds Government Whistleblowers Lack Adequate Protections. Retrieved 27th February, 2010 from http://www.govexec.com/dailyfed/0106/011006c1.htm U.S. Securities and Exchange Commission, (2008). Whistleblower Protection Act Information. Retrieved 27th February, 2010 from http://www.sec.gov/eeoinfo/whistleblowers.htm Whitaker, L.P. (2007). The Whistleblower Protection Act: An Overview. Retrieved 27th February, 2010 from http://www.fas.org/sgp/crs/natsec/RL33918.pdf Read More