What You Need to Know About the Federal Whistleblower Protection Act
The Federal Whistleblower Protection Act
The whistleblower who brought concerns related to the now well-known telephone call between United States President Trump and Ukrainian President Zelensky to the attention of the American public prompted a lot of buzz around exactly what type of protections are afforded whistleblowers. Specifically, whether whistleblowers have the right for their identity to remain anonymous even as an investigation is being conducted.
Some argue: shouldn’t an accused have the ability to face their accuser? While others warn: if whistleblowers knew they were at risk of having their names revealed, wouldn’t they be less likely to raise concerns over issues of legitimate concern?
The Whistleblower Protection Act (WPA)
While opinions may abound, some facts can be gleaned from the Whistleblower Protection Act (WPA) which protects Federal employees and applicants for Federal positions who make lawful disclosures about information that they believe:
- Violates the law
- Represents gross mismanagement
- Represents a gross waste of funds
- Represents an abuse of authority
- Is a substantial and specific danger to public health or safety
An enhancement to this act—the Whistleblower Protection Enhancement Act (WPEA), was passed to strengthen whistleblower protections for those reporting fraud, waste, and abuse and to clarify the scope of protected disclosures.
Can a Whistleblower Remain Anonymous? No, But…
What the Federal law does not do, though, is guarantee anonymity, according to attorney Mathew B. Tully. “No federal law exists that entitles whistleblowers the statutory right to remain anonymous—no matter what their government position, location of employment or the nature of the alleged improper incident,” he writes.
The issue becomes a bit murky, though, because whistleblower laws do protect whistleblowers from retaliation. And, as Tully writes, “it can be argued that the disclosure of a whistleblower’s name in and of itself could be considered retaliation.”
Not Just a Requirement of Federal Employers
While the WPA and WPEA apply specifically to federal employers, public and private employers are also subject to rules related to dealing with whistleblower protections.
The Sarbanes-Oxley Act (SOX), passed in 2002 following the collapse of Enron due to corporate fraud, provides protection for employees who are retaliated against for reporting fraudulent conduct or conduct I violation of securities laws. This protection was expanded to employees of privately owned contractors and subcontractors of public companies in 2014 by the U.S. Supreme Court ruling in Lawson v. FMR LLC. Many states also have their own whistleblower protections.
In addition to laws and regulations related to whistleblowing, organizations may have their own internal policies and processes for employees who feel they have observed something illegal or inappropriate and are concerned about retaliation for sharing their concerns. Organizations of any type can benefit from these whistleblowing protections and should be concerned about creating an environment of transparency and trust where employees are encouraged, even rewarded, to see something and do something.