GUIDE TO THE MODEL ACT
Comprehensive whistleblower protection legislation must combine an adequate scope of protection with an effective enforcement procedure. Current whistleblower protec-tion laws are lacking on several counts. The model act, although extremely ambitious, provides a measure against which to compare draft legislation.
The scope of protection offered by whistleblower legislation is determined primarily by three factors: (1) which personnel practices are prohibited, (2) which disclosures are protected, and (3) which activities are protected. Factors two and three could be jointly thought of as a list of protected activities. Keeping the two factors separate, however, helps distinguish between expression and other forms of activity. The overall effective-ness of whistleblower protection legislation is determined by three primary factors: (1) the enforcement procedure, (2) the burden of proof arrangement, and (3) the remedies.
A number of state laws contain explicit provisions to (1) prevent frivolous claims and (2) give employers a chance to rectify problems internally. Although such provisions are theoretically appealing, in practice they serve to weaken whistleblower protection laws.
Scope of Protection
- "Prohibited personnel action" must be defined in a broad, open-ended man-ner in order to prevent employers from discriminating against employees for blowing or threatening to blow the whistle. Any finite list of prohibited actions would leave room for more creative employers and their attorneys to devise ways to "deal" with whistleblowers.
A typical method of punishing whistleblowers is to make their working lives miserable. This can include giving them more work than is humanly possi-ble to finish, or demoralizing them by requiring them to attend psychological counseling. For less scrupulous employers, specific lists of prohibited actions merely provide a check-list to work around.
Legislators often complain that broad, open-ended statutory language fails to provide a clear mandate; they prefer narrow statutory language because it conveys a clear sense of do's and don'ts. Broadly defining prohibited person-nel action is an exception to this complaint. Employers have a clear man-date: discharge or demotion for poor performance is permissible, but retalia-tion against an employee for blowing the whistle is impermissible.
- "Protected disclosure," in the context of the model act, defines what employ-ee speech is protected. Almost all state whistleblower protection acts protect communication which discloses violations of the law. The model act, in addition, covers employee communications regarding safety hazards and vio-lations of professional codes of ethics. Public employees are further protected for communications regarding government malfeasance.
The range of speech whistleblower protection legislation should secure is a function of principle and political feasibility. On principle, the employer's interest in controlling employee speech must be balanced with other concerns such as justice, the employee's interests, and societal interests.
"Protected disclosure," as defined in the model act, covers a narrow set of topics, which most people would agree are directly connected to employee and social well-being. Also, only "good faith"45 communications are protect-ed by the model act.46 Intentionally false disclosures are not covered.
- Besides communications on the listed topics, the model act also covers a vari-ety of other activities. Most current whistleblower protection laws only cover disclosures and exclude other activities such as exercising a legal right or refusing to violate the law. However, there are certain whistleblower protec-tion laws that do include a broad list of activities besides speech. The model act conceives of "whistleblowing" as activities, not just speech, intended to correct, report, or prevent employer misconduct.
In most cases, the listed activities are a simple extension of the protected top-ics of communication. As with the "protected disclosures," these activities must be secured. For example, if one should be allowed to make a disclosure concerning the violation of broadly recognized standards of professional ethics, it only makes sense that one should be further allowed to refuse orders to violate these standards.
Who the employee is protected from is another important facet of practically protecting whistleblower activities. Most state whistleblower protection acts prevent retaliation by employers. In certain cases, depending on the statuto-ry definition of "employer," the employees of subcontractors or employees who work for employers other than their own may not be adequately pro-tected against retaliation, since the retaliating party may not be their "employer." The model statute avoids this difficulty by prohibiting any per-son from retaliating against another for making protected disclosures. Such a construction more effectively covers the usual as well as unusual employment situation.
- Section 3. of the model act provides a two-track system by which whistle-blowers may seek relief.47 Each track has advantages and disadvantages. Civil action will have a greater impact, while the administrative route will be quicker and less expensive for all parties.
A statute with just one of these two tracks might result in less effective pro-tections for whistleblowers. The primary difficulty with civil action is the time it takes to get to court. Administrative procedures, although quicker, may not, in practice, have the same degree of procedural fairness as judicial proceedings. In addition, justice for the whistleblower becomes a function of department of labor politics and funding. A two- track system would allow whistleblowers to weigh the advantages and disadvantages of both tracks, and choose the one best suited to their case.
- Whistleblower protection laws cannot effectively protect employees without a fair burden of proof arrangement. Many of the current laws designed to pro-tect whistleblowers place the entire burden of proof on the employee. Employers typically claim that the employee was fired for some reason besides blowing the whistle. Few employees can mount enough evidence to counter such a claim.
The model act introduces an alternative. Employees need only show that blowing the whistle contributed to their mistreatment, after which the employer must show the employee would have been fired independently of his or her blowing the whistle.48 Such a burden of proof sets up a more real-istic standard for employees. False claims will be shown to be false under either arrangement, while valid claims can be more easily proven in the courts.
- The remedies included in the model act are very similar to those in most state acts. Of course, narrower remedies would make whistleblower protec-tion legislation less effective. The deterrence factor for unscrupulous employers is largely a function of the remedies for employees.
Frivolous Claims Provisions and In-house Correction Provisions
- Many of the current state whistleblower protection statutes include provi-sions to penalize employees who file frivolous claims. Penalties may range from paying the employer's legal fees to paying a fine. The model act does not include such a provision because penalizing frivolous claims has a chilling effect on those with meritorious claims. For most employees the mere chance of having to pay their employer's legal fees is enough to keep them from filing complains.
Frivolous claim clauses are also redundant. According to the federal rules of civil procedure, lawyers may be penalized for frivolous filings, thereby encouraging them not to pursue frivolous whistleblowing claims. Similar rules exist in most states.
- In order to be protected under a number of state whistleblower statutes, the employees must, prior to public disclosure, give their employers a chance to rectify problems. For example, employees must first report violations of the law to their employers. The employers have a certain period of time in which to address the employee's concerns. If the employer fails to address the employees concerns, the employee may make a public disclosure.
In theory this procedure should work, but in practice it often serves to undermine the whistleblower. In situations where the employer can be trust-ed, the employee should inform the employer. In situations where the employer cannot be trusted, however, the employee should have other alter-natives. Employer notification requirements of this sort should not be legislated. Ideally, the whistleblower should be allowed to choose. Employers may encourage their employees to report misconduct to company officials, but this should not be legally sanctioned.
Employer notification provisions may be a necessary compromise for passage of this legislation. In such cases, exceptions must be made for cases in which employees have a reasonable cause to expect retaliation or for cases in which employee disclosures are necessary for law enforcement functions. Most state whistleblower protection statutes in existence include poorly constructed employer notification provisions. It is very difficult to construct an employer notification provision that does not, in effect, stifle employees from engaging in legitimate whistleblowing. In addition, employer notification require-ments just give unscrupulous employers additional time to undercut whistle-blowers. For these reasons it is highly advisable to avoid including employer notification provisions altogether.