Whistleblower Protection Legislation Will Help Some, but Not All

Whistleblower Protection Legislation Will Help Some, but Not All

As the Whistleblower Protection Enhancement Act works its way through the House and Senate, advocates celebrate the possibility of stronger safeguards against employer retaliation, jury trial rights on retaliation claims by whistleblowers and the lifting of gag rules imposed by some national security agencies.

“I support the passage of the Senate bill,” said Angela Canterbury, advocacy director of Public Citizen’s Congress Watch, which lobbies Congress for the public interest. “It is not a perfect bill but it is far and away the strongest Whistleblower Protection enhancement we have seen passed in the Senate, and its passage is absolutely essential to having reform so that whistle-blowers in the federal government, including contractors, finally have the protection they need.”

Along with organizations such as the Project on Government Oversight, the Government Accountability Project, the American Civil Liberties Union, the American Federation of Government Employees and the National Treasure Employees Union, Public Citizen has been working closely with Senate committee staff as well as the administration and members in the House to pass comprehensive reform.

“Overall, the first principle is do no harm, and absolutely no whistle-blower right should be curtailed, limited or rolled back by this legislation. With the Senate bill that they are working to produce right now, I am confident they will meet that principle,” said Canterbury.

“I would like to see more due process rights for workers,” she said of the balance between what she wants and what can be achieved. “But I would also like to see a bill pass the Senate and I don’t think the political atmosphere in the Senate would be receptive [to further demands].”

The continuing failure by the Obama administration to appoint a leader to the Office of Special Counsel (OSC), a federal agency set up to protect the rights of federal employees against employer retribution and other discrimination, continues to worry advocates concerned with whistleblower rights. The position has been empty since October 2008.

“The OSC needs a head, it needs a director with or without this law,” Canterbury went on to say. “It needs one that respects and understands the role of accountability and oversight that whistle-blowers play, and it needs a head that is accountable.”

The Merit Systems Protection Board, a quasi-judicial agency that adjudicates whistleblower complaints, has also fallen short in whistleblower protection standards. Of 59 whistleblower cases the board has heard since 2009, it has only ruled for the whistleblower in three.

The Court of Appeals for the Federal Circuit has a similar record – it has rules for whistleblowers in only three of 203 cases since 2004, according to an analysis by the Government Accountability Project.

According to Sen. Daniel Akaka (D-Hawaii), the pending legislation would reverse the effects of cases heard by the court and merit board that “narrowed the protections of the Whistleblower Protection Act. Akaka, a lead sponsor of the bill, went on to say that without “strong new protections” encouraging whistleblowers to come forward without fear, “we squander the opportunity to protect taxpayer dollars, public health and safety, civil liberties, national security and other important interests.”

However, Danielle Brian, head of the Project on Government Oversight, said “it’s important not to create this fantasy that once we get good legislation, it won’t still be a miserable experience to be a whistle-blower. It’ll always be a miserable experience.”