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Whistleblowers and Their Rights

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

What is a whistleblower?

Whistleblowers are employees who report wrongdoing by the federal, state or local government, or by a private entity, when that wrongdoing harms the public. Usually, but not always, the wrongdoing will benefit the government or private entity that engages in the wrongdoing. The purpose of whistleblower protection laws is to allow employees to report, stop or testify about this kind of wrongdoing.

Examples

An employee of a city agency reports that the city is hiring unlicensed contractors to keep its budget low by. This has the potential to harm the public because the contractors are unqualified to bid on a job, and presumably less competent.

But a department store clerk who reports that a co-worker is stealing money from the cash register is not a whistleblower because the only one harmed is the employer.

However, if the department store clerk reports that a co-worker is switching prices so that customers are paying more for items and the employee is pocketing the difference, then the public is harmed.

Note the wrongdoing does not have to be related to money. It could be improper training, violations of health and safety laws, unlawful employment practices such as discrimination, false advertising, and much more.

Whistleblower laws

Many laws protect whistleblowers who engage in specific types of activity. For example, the same laws that protect employees from employment discrimination based on sex, race, disability, etc. also protect employees who blow the whistle on an employers’ prohibited discrimination. Another example is where an employee reports a health or safety violation; this kind of report is protected by the Occupational Safety and Health Act.

If a law includes whistleblower protection, it will also include a method to enforce that protection, or the protection may be enforceable through a private attorneys general law. These laws may be state laws or federal.

Some of the federal laws are listed on the U.S. Department of Labor web site at http://www.dol.gov/compliance/guide/whistle.htm and include:

  • Asbestos Hazard Emergency Response Act (AHERA), 15 USC §2651
  • Clean Air Act (CAA), 42 USC § 7622
  • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
  • Consumer Product Safety Improvement Act (CPSIA), 15 USC § 2087
  • Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
  • Federal Rail Safety Act (FRSA), 49 USC § 20109
  • Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
  • International Safety Container Act (ISCA), 46 USC App. § 1506
  • National Transit Systems Security Act (NTSSA), 6 USC § 1142
  • Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
  • Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
  • Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
  • Sarbanes-Oxley Act (SOX), 18 USC § 1514A
  • Solid Waste Disposal Act (SWDA), 42 USC § 6971
  • Surface Transportation Assistance Act (STAA), 49 USC § 31105
  • Toxic Substances Control Act (TSCA), 15 USC § 2622
  • Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 USC § 42121

To find out what state laws protect whistleblowers, visit the National Whistleblower Center’s web site: http://www.whistleblowers.org The National Whistleblower Center is a private law firm with a strong history of protecting whistleblowers. Its web site has a lot of helpful information about federal and state whistleblower laws. Information on state whistleblower laws can be found here: http://www.whistleblowers.org/index.php?option=com_content&task=view&id=34 &Itemid=63

Enforcement

A serious problem of many whistleblower laws is that the time limit (statute of limitation) for an employee to file a complaint of retaliation is very, very short – sometimes as short as 30 days from the date of the employer’s retaliatory action.

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Spencer Johnson McCammon Weekly

Spencer Johnson McCammon Weekly

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