The nation’s first whistleblower law was passed in 1778. Think about that for a moment. Over two hundred years ago, the country’s Founding Fathers saw the crucial role that whistleblowers play in the fight against waste, fraud and abuse. The country’s first whistleblower law, passed unanimously by the Continental Congress, said:
“…it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information of wrongdoing to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”
The Founding Fathers were onto something, and the concept of Americans reporting ‘misconduct’ and ‘fraud’ to Congress is just as important now as it was when our country was in its infancy.
Today we see that fraud remains a huge problems and whistleblowers are retaliated against, wrongfully terminated, or blackballed from the industry they have spent their lives working in. Anyone who has decided to speak out and expose malfeasance on the part of a corporation or a government agency knows that being a whistleblower is a long, hard and risky road.
Whistleblowers are often recognized for their public service, but too often their act of bringing the truth to light costs them their careers. Blowing the whistle shouldn’t be like that, especially since we all benefit from exposed corporate wrongdoing. It is for this reason that July 30 is recognized each year as National Whistleblower Day; to not only honor and support whistleblowers for their sacrifices and bravery, but to raise awareness and ensure that our country’s laws continue to offer them protection and incentive to expose the truth.
“I’m still trying to rebuild my life.”
That’s what former National Security Administration (NSA) executive-turned-whistleblower Thomas Drake said today addressing an audience on Capitol Hill in a speech commemorating National Whistleblower Day. You might remember Drake’s hallmark case in which he was prosecuted by the Justice Department in 2010 for discussing a decade old surveillance programs with a newspaper reporter.
Most of the charges against Drake were ultimately dropped, but he still ended up pleading guilty to a lesser charge that continues to haunt him. Today, Drake says that he is considered persona non grata and many of his friends are gone. He can’t get work in contracting, nor in the government sphere, so he now works in an Apple Store.
“Apple is fun, but it’s nowhere near who I am, where I grew up, or where I am in [wanting to] serve my nation,” Drake said in his National Whistleblower Day speech.
Whistleblowers deserve jury trials
Another former whistleblower who spoke on Thursday was Robert MacLean, the former Transportation Security Administration (TSA) air marshal who was terminated after speaking to a TV reporter in 2003 about planned cuts for in-flight air marshal operations. Upon learning about the cuts, MacLean voiced concerns to his superiors, saying that they would put lives in danger. After being told that there was nothing to be done, MacLean was told to keep quiet.
MacLean turned whistleblower and leaked the news to an MSNBC reporter. After the story gained widespread media attention, Congress ended up scrapping the plans to reduce air marshal presence. Everything was fine for MacLean for a couple of years after his disclosure, but once the TSA learned that he was the source for the MSNBC report, he was promptly terminated.
After many years of struggle, MacLean did manage to secure an important Supreme Court decision earlier this year. The Justices ruled 7 to 2 in his favor that he did not violate federal law by leaking the proposed cuts to the reporter.
MacLean told the audience during his National Whistleblower Day speech that the TSA is still litigating. He added that the Merit Systems Protection Board (MSPB), an independent agency established to ensure adequate protection for federal employees against abuses by agency management, is “weak.” He cited a case in which an administrative judge has delayed a decision for almost two years, and then stated that federal whistleblowers deserve jury trials.
Financial whistleblowers have also found the road a difficult one.
Linda Almonte was making $100,000 annually as a division vice president at JPMorgan Chase, enough to support herself, her four kids and her stay-at-home husband. When she alerted her boss about potential fraud in a deal she was working on, she expected a pat on the back for a job well done.
Instead, her boss told her to be quiet and keep the deal moving. She refused and was later fired.
Almonte tried to find work at another bank, but none would hire her on after she stood up to Chase. She endured continued harassment and personal hardship as a result of doing the right thing. Her career, she says, will never be what it was because her name is everywhere. “I can’t live that down,” says Almonte.
Whistleblower job protection?
According to Dana Gold, senior fellow at the Government Accountability Project (GAP), the fate of Almonte and the other whistleblowers is far from unique. We still have a long way to go in terms of making all would-be whistleblowers feel comfortable enough to come forward.
But the federal government and state governments have still managed to recover an estimated $55 billion from cases stemming from whistleblower lawsuits. Bold whistleblower protection provisions in the False Claims Act and the Dodd-Frank Act have certainly helped build whistleblower confidence, and the Securities Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have both recently ramped up their efforts to protect whistleblowers.
You may not know this, but the False Claims Act protects employees, contractors and agents from retaliation. A whistleblower who lawfully investigates or brings a False Claims Act claim is covered “if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment,” according to the FCA.
Furthermore, any whistleblower that was retaliated against can seek “all relief necessary to make the employee…whole.” This can include reinstatement to their former job, back pay amounting to twice their salary and the reimbursement of litigation costs.
States also offer their own whistleblower laws. California employees that have been the victims of retaliation, for example, are entitled to reinstatement with their same status, and the company that broke the law is forced to pay the whistleblower’s legal fees.
More to be done…
Still, there is plenty more that can be done to protect whistleblowers and encourage them to come forward. For example, many whistleblowers are forced to wait for years before their cases sees the light of day, putting them under tremendous financial strain, especially if they cannot find work in their industry. There should be more resources aimed at getting whistleblower claims processed in a timely fashion so relators can help serve justice and return to their lives. They aren’t the responsible party for the wrongdoing, so why should they suffer for bringing the truth to light?
National Whistleblower Day is a great idea: it can better inform the public of just how important whistleblowers are and make people take notice of how difficult it is becoming a whistleblower. We owe a debt to so many that have chosen to walk an uneasy path to justice and progress. Let’s repay it by honoring them on July 30, and by protecting them as best we can moving forward.