Whistleblower Protection Act

The Whistleblower Protection Act encourages employees of federal government agencies, and those under federal contracts in the private sector, to monitor and report wrongdoing by their employers. It also forbids any retaliation against either employees or applicants for engaging in protected activities involved in whistleblowing.

The WPA encourages federal employees to report government and agency misconduct and bars federal agencies from retaliating against federal employees, former employees, and job applicants who disclose information that they believe shows a violation of any law or regulation, or reflects gross mismanagement, waste of funds, an abuse of authority, or represents substantial and specific danger to public health or safety.

WPA makes it easier for an employee to show that he/she has been retaliated against by being demoted or discharged for reporting wrongdoing.  The federal agency involved must prove that it would have taken the same action if the employee had not blown the whistle.  Whistleblowers may be reinstated with full back pay and benefits, in addition to attorney fees and other legal costs. 

Coverage

The Act specifically covers federal employees.  Although it does not directly cover employees in private industries, it does apply to a private company that commits unlawful acts or engages in prohibited personnel practices while under a contract with a government agency.  This means that private employees working on government contracts are protected under the WPA if they blow the whistle on their employers.

Key Definitions

Whistleblowing is the reporting in good faith by employees of activities they reasonably believe to be a violation of state or federal law, or conditions or practices that would put their health or safety at risk, or situations involving company conduct that raises ethical or legal concerns.

According to the EEOC, it is against the law to retaliate against a person because he/she has opposed that which he/she reasonably and in good faith believes to be unlawful discrimination, sexual harassment in employment or higher education, or because he/she had made a charge, filed a complaint, testified, or participated in an investigation, proceeding, or hearing.  Possible forms of retaliation include firing, suspension, demotion, salary decreases, and job harassment.

Courts usually look for four elements to prove a case of retaliation by an employer:

• employee was engaged in a protected activity;
• employer knew of this activity;
• employer took adverse action against the employee; and
• there was a connection between the protected activity and the retaliation.

Internal reporting channels are the confidential means by which employees can go outside their normal chain of command to report wrongdoing to an independent, highly placed company official without placing their careers at risk.

Intentional infliction of emotional distress occurs when an employer harasses a whistleblower, demands illegal or improper conduct, or acts in some other outrageous manner.

FAQs about WPA

The courts have defined eight protected activities.

1. Filing discrimination charges with the EEOC or a state human rights agency.
2. Filing unfair labor practice charges with the National Labor Relations Board or a state agency.
3. Filing a Workers’ Compensation claim.
4. Filing a complaint with the Occupational Safety and Health Administration about safety hazards or refusing an assignment because of the fear that it might be dangerous.
5. Engaging in lawful union activities.
6. Filing an equal pay or wage/hour violation.
7. Opposing or publicizing policies that violate antitrust or consumer protection laws, such as the Environmental Protection Act.
8. Reporting fraud, corruption, or other forms of lawbreaking covered by the Racketeering and Corruption Organization Act, the WPA, or by state whistleblower statutes.

An employee must be able to prove that the following events occurred:

• a protected disclosure was made;
• the employer knew of the disclosure;
• retaliation resulted;
• there was a connection between the retaliation and the employee’s termination.

No. While employees can never be disciplined for reporting suspected wrongdoing, they can be fired for insubordination and harassment. Courts have held that insubordination, disrupting the workplace, or refusing to carry out assigned duties can legitimately result in discipline or termination. While employees are entitled to express opposition to their employers’ practices and policies, they have to do it in a reasonable way. You can safely discharge complaining employees if you can prove:

• their job performance was poor;
• their opposition created substantial hardship for you;
• they were in conflict with co-workers;
• they engaged in criminal activities; or
• their termination was for a legitimate reason, such as a reduction-in-force.

Here are some tips for avoiding charges of retaliation under the WPA — or any other whistleblower protection law for that matter.

• Establish a channel for reporting any suspected wrongdoing outside the normal chain of command. Make sure that all employees understand that they can disclose any suspected misconduct without fear of reprisal.
• Be alert to the following warning signs that an employee is being retaliated against for reporting wrongdoing:
  • The employee’s performance rating suddenly begins to drop.
  • The employee gets all the difficult or undesirable assignments.
  • The employee’s supervisor suddenly has nothing positive to say about him/her.
  • The supervisor takes a biased, subjective view about him/her.
• Explain exactly how complaints will be handled and detail the steps the company will take to investigate. Set up an appeals process for employees who feel that their complaints were not taken seriously or investigated thoroughly. Designate a specific individual to whom whistleblowers can go for assistance during the appeal process.
• Encourage employees to report all suspected wrongdoing, so that an immediate investigation can begin. Let them know that their complaints or accusations are protected activities, even if their suspicions are unconfirmed.
• Defend yourself against any type of retaliation lawsuit by relying on a performance evaluation process that is accurate, fair, and timely. A number of companies have lost retaliation lawsuits because of performance appraisals that show an employee’s performance going from excellent to unsatisfactory shortly after he/she has blown the whistle. You should keep these thoughts in mind when evaluating the performance of whistleblowers:
  • Sequence is important. Courts look for evaluations that go from outstanding to poor almost overnight. If an employee’s performance legitimately deteriorates after a complaint is filed, you must have the documentation to back it up.
  • Objectivity is critical. Compare this rating with those of employees who have not filed complaints. Do not allow personal feelings to affect the outcome. If you or your managers are having difficulty staying objective, say so. Better to do it now than have a judge do it for you later.
  • Honesty is absolutely essential. Lowering an evaluation because of a whistleblowing complaint can backfire, especially if the employee is not warned of the declining performance or given help in improving it. Rating employees who have filed complaints higher than they deserve can also lead to problems. A number of retaliation claims have been upheld for employees who are able to produce glowing evaluations that contradict performance-based termination decisions.
  • Consistency is necessary. Reviewing performance at irregular times can be seen as building a case against a whistleblower, especially if you do it right after a complaint is filed. It doesn’t mean that you can’t counsel poor performers or issue warnings for declining performance. Just make sure you handle all problem performers in a standard way. Most importantly, make sure the overall rating you give the employee is consistent with evaluations you have given to other employees who have not filed complaints.
  • Remain objective. No matter how unfounded you feel a whistleblower’s complaint is, you must never let anger get in the way of judgment. Above all, you must avoid any actions or statements that give even the hint of retaliation. If the employee performs unsatisfactorily after filing a complaint, you must apply discipline just as you would with any other employee. Make sure you can justify your action with written documentation in case you have to fend off charges of retaliation. Even the hint of retaliation against an employee can be disastrous.
  • Study all discipline and termination decisions carefully to make sure they are not retaliatory in nature.

Save on Delicious

Tweet

Like what you've read? ...Republish it and share great business tips!

Attention: Readers, Publishers, Editors, Bloggers, Media, Webmasters and more...

We believe great content should be read and passed around. After all, knowledge IS power. And good business can become great with the right information at their fingertips. If you'd like to share any of the insightful articles on BusinessManagementDaily.com, you may republish or syndicate it without charge.

The only thing we ask is that you keep the article exactly as it was written and formatted. You also need to include an attribution statement and link to the article.

" This information is proudly provided by Business Management Daily.com: http://www.businessmanagementdaily.com/19730/whistleblower-protection-act "