Whistleblowers and their rights

Marilynn Mika Spencer

Written by

Employment / Labor Attorney

Posted February 14, 2012

What is a whistleblower?

Whistleblowers are employees (or others) who refuse to go along with, or who report, wrongdoing by an individual, an employer or another business in the public or private sector, when that wrongdoing harms the public or has the potential to harm the public. Usually, but not always, the wrongdoing will benefit the person or 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.

Many whistleblower laws have a very short time period in which to file a claim. More information below.

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:

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

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 has 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 of the 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.

Employment law is complicated and fact specific. Employees who face retaliation due to their whistleblowing are nearly always better off with the help of an attorney. To find an employment attorney in California or in another state:

California

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

Other states

To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.


Additional Resources

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