Published: February 18, 2009
The Policy Report
By Paula J. Desio, ERC Chair on Ethics Policy
Federal Whistleblower Rights Increase Under the Stimulus Law
Advocates continue to press at the federal level for more whistleblower protections and managed to get part of their agenda into the new economic stimulus legislation.
As discussed here last fall, there has been a decade-long effort in the works to pass federal legislation that would shield more federal employees and contractors – particularly Transportation Security Administration employees, national security workers, and scientists -- from retaliation for blowing the whistle on fraud and abuse of federal funds.
While supporters had initially succeeded in including the text of the proposed 2008 Whistleblower Enhancement Protection Act in the financial stimulus proposal that was approved by the House of Representatives on January 29, the Senate approved a much narrower version that does not cover employees at the federal level.
However, the new law does create federal whistleblower protections for employees and recipients of any federal stimulus package funds -- including state and local government employees and contractors, subcontractors, and grantees. The new law gives these employees specific protections -- the right to seek investigation and review by federal Inspector Generals of an adverse personnel action, such as termination or demotion – taken against them because they disclosed evidence of potential misuse of stimulus funds or dangers to public health or safety.
Federal agency heads will review the IGs’ reports, and may order the non-federal employer to reinstate the employee and provide compensatory damages. Federal court remedies are also available to the employee-whistleblower under the new law.
Since these new federal protections attach to private sector and state and local government employees, it remains to be seen how well these workers will be able to navigate access to federal inspector generals and agency administrators to enforce their newly-created rights, which presumably expire when stimulus funded projects are completed.
Whether IG offices and federal agencies will publicize the new remedies to the potentially broad base of eligible employees across the nation bears watching. Requiring publicity about these whistleblower protections at employers’ worksites in the contract terms for stimulus funding disbursements is consistent with the approach recently adopted for federal contractors as part of new ethics and business integrity rules.
While efforts to encourage disclosure of potential wrongdoing in the workplace are laudable, ERC again questions whether such legal-based remedies that offer protection “after the fact” are the most effective means to reduce misconduct in the workplace. As research and empirical data consistently demonstrate, more attention is best directed toward early detection and reporting of misconduct in the first instance through the creation of a strong ethical culture where fear of reprisal is minimized and open discussion is encouraged. Cost savings in terms of employee morale and legal actions could be among the potential benefits to taxpayers.