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Pending Legislation Seeks to Expand Whistleblower Protections

Whistleblowers are a legal class of persons who expose what they reasonably believe to be unlawful activity to a person or entity that has the power to correct that wrongdoing. A number of laws at both the federal and state level protect whistleblowers from retaliation.  These protections exist because whistleblowers often expose fraud or other unlawful activity that would otherwise remain undisclosed.  The Department of Labor’s Occupational Safety & Health Administration, for example, enforces the anti-retaliation provisions of twenty-two different statutes that protect employees in the private sector. The United States Office of Special Counsel enforces the Whistleblower Protection Act, which covers most, but not all, civilian employees of the federal government. In recent years, whistleblower protections have been extended, through the National Defense Authorization Act of 2013, to employees of government contractors who disclose fraud or mismanagement related to a contract with the federal government. And in 2014, the Supreme Court extended the anti-retaliation provisions of the Sarbanes-Oxley Act to employees of contractors who provide services to publicly held companies.

But there are limits to the many protections that already exist for whistleblowers. The WPA, for example, specifically excludes members of the Intelligence Community. Members of the Intelligence Community are covered instead under the Intelligence Community Whistleblower Protection Act, which lacks an anti-retaliation provision. Even Presidential Policy Directive 19, which President Obama signed in October 2012 to provide some protection from retaliation to those serving in the Intelligence Community, fails to provide a private right of action to an aggrieved employee. And in recent years, there have been a number of cases involving whistleblower retaliation in the Department of Veterans Affairs.

Four members of the Senate Whistleblower Protection Caucus have introduced bills which, if passed, would alleviate some shortcomings in protections for whistleblowers. In March 2015, Senator Claire McCaskill of Missouri introduced three whistleblower protection bills. One of Senator McCaskill’s bills would require the firing of any VA employee who is found to have retaliated against a whistleblower. The second would extend legal protections to federal contractors who work for agencies that are part of the Intelligence Community. And the third would enhance the protections provided to whistleblowers who work for employees of government contractors.

Senator Barbara Boxer introduced the Legal Justice for Servicemembers Act of 2015 in April 2015. This bill would overhaul whistleblower protections for members of the military by expanding the definition of a prohibited personnel practice to include: 1) “the failure of a superior to respond to retaliatory action or harassment by one or more subordinates taken against a member of which the superior knew or should have known”; and 2) “any other action that could be reasonably understood as an attempt to dissuade a member of the armed forces from making or preparing a communication, or participating in any other activity” involving communication to a member of Congress or an agency’s Inspector General.

More recently, in October 2015, Senator Ron Johnson of Wisconsin introduced the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2015, which expands the access of the Office of Special Counsel to records and documents pertaining to a matter it investigates, and requires agencies to specifically disclose information about whistleblower protections to new employees. And Senator Chuck Grassley introduced the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015 in December 2015.

It remains unclear which, if any, of these bills will ultimately become law. But the introduction of these bills suggests that there is some Congressional support for enhancing the protections provided to whistleblowers, particularly for those who lack clear protection, such as members of the Intelligence Community. Ultimately, efforts to protect whistleblowers will lead to more of the valuable service whistleblowers provide – the disclosure of illegal behavior to those who can put a stop to it.

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