National Whistleblower Day and the State of Whistleblower Protections

On July 30th, National Whistleblowers Day, America commemorates its first effort to protect whistleblowers, enacted on July 30, 1778. That Act provided funds to defend whistleblowers Samuel Shaw and Richard Marven, who had reported how the Commander-in-Chief of the Continental Navy, Esek Hopkins, tortured British prisoners of war. Hopkins fired them and filed criminal libel charges that landed them in jail. The Continental Congress found that Shaw and Marven had done the right thing and authorized payment of their attorney’s fees.

Given that history, July 30 is a good time to look back and assess the strengths and weaknesses of today’s whistleblower protection laws.

Last year, Congress and the Chief Justice of the United States protected the identity of a whistleblower during Donald Trump’s impeachment trial. Still, it remains difficult for many whistleblowers to find the protection that Congress gave to Shaw and Marven in 1778. Whistleblowers in the intelligence agencies and armed services have no access to courts for their protection. Many federal judges have shown a less-than-urgent interest in protecting whistleblowers. And in the throes of a pandemic, protections for workplace health and safety whistleblowers have been particularly anemic.

During Trump’s first impeachment trial, Sen. Rand Paul submitted questions that would have revealed the name of an intelligence official who, in a confidential disclosure, had raised concerns that Trump was trading away the interests of the United States to gain a political favor from Ukraine. Since 1998, the National Security Act, 50 U.S.C. §3033(k)(5), permits members of the Intelligence Community (IC) to submit “urgent concerns” through an Inspector General (IG) to the congressional intelligence committees. That law requires that the name of the whistleblower be kept confidential, unless the IG finds the disclosure is “unavoidable,” or the disclosure is made to the Justice Department for criminal prosecution. During the Senate trial, Chief Justice Roberts refused to read Sen. Paul’s questions, upholding this limited protection for IC whistleblowers.

Modern whistleblower laws recognize that whistleblowers have a difficult time proving retaliation for their disclosures. In 1989, Congress sought to tip the scales in favor of federal employee whistleblowers by permitting them to win relief if they show that their whistleblowing was “a contributing factor” in their adverse treatment (not “the sole factor” or “a motivating factor”), unless the federal agency could show “by clear and convincing evidence” that it would have taken the same action without the whistleblowing. Since then, Congress has expanded this favorable standard to protect whistleblowers raising concerns about nuclear power, corporate fraud, transportation and food safety, government contractors, tax compliance and health insurance benefits. Yet, too many judges have used “clear and convincing evidence” as a label they can paste into their decisions to justify the denial of protection for whistleblowers. Federal employees can seek relief from the Merit Systems Protection Board (MSPB), but it has had no Board members since 2017. Federal employee whistleblowers who are unfairly denied relief by an MSPB Administrative Judge either have to join a backlog of over 3,500 cases, or seek review from a federal appeals court.

Among its many ills, the COVID-19 pandemic has also revealed a particularly prominent and pervasive hole in our uneven web of whistleblower protections: the lack of any individual right of action for workplace health and safety whistleblowers. The antiquated 1970 Occupational Safety and Health Act, Section 11(c), permits workplace safety whistleblowers to file complaints with OSHA, but if OSHA decides not to file a federal lawsuit, the whistleblower has no right to any hearing under federal law. Further, workplace safety and environmental whistleblowers have to file their retaliation complaints within 30 days of each adverse action. OSHA received up to 44 COVID-19 related retaliation cases in one day, but it closed most of them. Last year, OSHA received 2,539 complaints under Section 11(c) and found merit in just 20 cases.

Instead of the current industry by industry approach, or even the individual whistleblower approach, 233 years after Congress protected our country’s first known whistleblowers, the time has come to protect them all.