The Development of Whistleblower Protection in the United States

By Pheby Liu
Pheby Liu is a freshman at the University of Pennsylvania.

On March 29, 2017, Simon Edelman, the chief creative officer for the U.S. Department of Energy, was photographing a meeting between Energy Secretary Rick Perry and Robert Murray, the chief executive of Murray Energy Corporation - he had made political significant contributions to both Perry and Trump’s campaigns. [1] Edelman said that Murray and Perry were discussing an “action plan” for policy changes that would favor Murray Energy as well as other coal companies. His photos showed the coversheet of the confidential “action plan” as well as Perry and Murray hugging. [2] After hearing the conversations between the two men, Edelman felt that something was not right and decided to release his photos to In These Times and the Washington Post. Shortly after, his personal items were seized, and he was put on administrative leave. The Energy Department proceeded to fire him without any explanation. [3]

Whistleblowers face tremendous risk and backlash in their efforts to reveal fraud and stand up for justice to protect the well-being of the general public. The nature of whistleblowing is inherently difficult because it typically involves a subordinate threatening authority figures and those in power. The choice to put their own careers and financial stability in jeopardy to provide a public service is a tough choice to make. [4] The United States recognizes that whistleblowing is vital to effective law enforcement efforts as well as the preservation of democracy. Almost every state offers some sort of whistleblower protection, and the volume of federal protection laws continues to grow. [5] Still, this country has had a long struggle with providing adequate support for whistleblowers.

The history of whistleblowing protections begins with the False Claims Act of 1863, introduced during the Civil War to punish profiteers who were supplying substandard supplies to the Union Army, which encouraged citizens to file suit against anyone committing fraud against the federal government. Following a series of defense industry contractor frauds, the Act was amended in 1986 to provide “legal protections and remedies for whistleblowers who are harassed, threatened, discharged or otherwise discriminated against in their employment because of their whistleblowing.” [6]

The False Claims Act allowed for the establishment of the Whistleblowing Protection Act of 1989, which protects employees who believe that their disclosure reveals “a violation of law, rule of regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a specific and substantial danger to public health and safety.” [7] However, according to data collected by the Merit Systems Protection Board, 33% of government employees thought that reporting misconduct would lead to employment consequences, 37% who did report misconduct received threats and retaliation. [8] Workers who reported retaliation experienced shunning from co-workers or managers, verbal harassment, intimidation, or poor performance appraisals, indicating that the Act failed to create a safe environment for workers to come forward. In a study analyzing federal whistleblowing cases from 1989 to 2010, researchers found that the federal government won 79% of the cases. [9]

The ineffectiveness of the WPA led to the passage of the Whistleblower Protection Enhancement Act of 2012, which attempted to address the judicial loopholes that the WPA created, prevent retaliation by holding management accountable through enhanced disciplinary action, and educate federal workers about their whistleblowing rights. [10] The WPEA expanded the scope of protected disclosures to include disclosures of misconduct to a coworker or supervisor who participated in the wrongdoing, and disclosures made while the employee was either still carrying out job duties or was off duty. [11]

Although these amendments have significantly strengthened protection measures, many employees still face similar problems of career damaging retaliation from federal agencies. Christian Head, a prominent Veterans Affairs whistleblower, exposed the VA’s cover-up of long patient wait times and dangerous emergency department patient safety defects to Congress in 2014. [12] The retaliation he faces still affects his career. Currently Head is a surgeon at the West Los Angeles Medical Center, one of the largest VA hospitals. He claims that the hospital is isolating him, and even though he is allowed to keep his title of associate director-chief of staff for quality assurance, he has been moved from an executive suite to a former storeroom, and his duties have been significantly reduced. [13]

Head and Edelman’s experiences are shared by many, and the blatant retaliation perpetrated by federal departments with no repercussions indicates that whistleblower reform has a lot farther to go.

​
[1] Protess, Ben. “He Leaked a Photo of Rick Perry Hugging a Coal Executive. Then He Lost His Job.” The New York Times. January 17, 2017. Accessed February 16, 2018. https://www.nytimes.com/2018/01/17/business/rick-perry-energy-photographer.html?rref=collection%2Ftimestopic%2FWhistle-Blowers&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection
[2] Ibid.
[3] Hand, Mark. “Releasing this picture got a Department of Energy photographer fired. He doesn’t regret it.” Think Progress. January 22, 2018. Accessed February 16, 2018. https://thinkprogress.org/energy-department-whistleblower-b1c6606a5c67/
[4] Schultz, David, and Khachik Harutyunyan. “Combating corruption: The development of whistleblowing laws in the United States, Europe, and Armenia.” International Comparative Jurisprudence 1, no. 2 (2015): 87-97. Accessed February 16, 2018. https://www.sciencedirect.com/science/article/pii/S2351667415000141
[5] Ibid.
[6] Shelley Peffer et al. “Whistle Where You Work? The Ineffectiveness of the Federal Whistleblower Protection Act of 1989 and the Promise of the Whistleblower Protection Enhancement Act of 2012.” Review of Public Personnel Administration 35, no. 1 (2013): 70-81. Accessed February 16, 2018. http://journals.sagepub.com/doi/abs/10.1177/0734371X13508414#articleCitationDownloadContainer
[7] S.20 Whistleblower Protection Act of 1989. April 4, 1989. Accessed February 16, 2018. https://www.congress.gov/bill/101st-congress/senate-bill/20/text
[8] Shelley Peffer et al. “Whistle Where You Work? The Ineffectiveness of the Federal Whistleblower Protection Act of 1989 and the Promise of the Whistleblower Protection Enhancement Act of 2012.” Review of Public Personnel Administration 35, no. 1 (2013): 70-81. Accessed February 16, 2018. http://journals.sagepub.com/doi/abs/10.1177/0734371X13508414#articleCitationDownloadContainer
[9] Ibid.
[10] Zuckerman, Jason. “Congress Strengthens Whistleblower Protections for Federal Employees.” American Bar Association. Accessed February 16, 2018. https://www.americanbar.org/content/newsletter/groups/labor_law/ll_flash/1212_abalel_flash/lel_flash12_2012spec.html
[11] Ibid.
[12] Davidson, Joe. “Victims say VA whistleblower retaliation is growing under Trump, despite rhetoric.” The Washington Post. October 30, 2017. Accessed February 16, 2018. https://www.washingtonpost.com/news/powerpost/wp/2017/10/30/victims-say-va-whistleblower-retaliation-is-growing-under-trump-despite-rhetoric/?utm_term=.1a38c0400a6a
[13] Ibid.
Photo Credit: Flickr user Truthout.org

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.