Understanding Your Legal Protections and Their Limits

Many whistleblowers assume that they are legally protected from retaliation. To an extent, they are right. Despite warnings and threats you might receive, it is your right under the Constitution and numerous laws to blow the whistle and not to suffer discrimination for doing so. Government employees are protected under the First and Fourteenth Amendments of the Constitution, which prohibit federal, state and local governments from retaliating against workers who express reasonable dissent on matters of public concern. A host of laws reinforce this right. Protection for employees in the private sector has developed over the past 25 years through statutes and under the common law.

Unfortunately, these protections are neither comprehensive nor well-enforced by government agencies and the courts. In some respects, what has evolved is a patchwork of specific employee legal protections covering environmental, health and safety, labor relations, and civil service issues. Overall, the odds of winning a reprisal lawsuit are not good-but they are improving. The rate of success for winning on the merits in administrative hearings under federal whistleblower laws has risen to between 25 and 33 percent in recent years, up from a previous rate of less than 10 percent in reported decisions. Many cases are thrown out on procedural grounds, however, and whistleblowers tend to fare worse in unreported decisions. Before you blow the whistle, you should know the legal protections that apply to you-and their limits.

For federal employees, the foundation for whistleblower protection is the Civil Service Reform Act of 1978 (CSRA). That law created a shield for the "merit system" principles underpinning the civil service by outlawing specific forms of harassment, called prohibited personnel practices. These include failure to hire, loss of duties and termination. The law explicitly prohibits these personnel actions for whistleblowing disclosures, refusal to violate the law, exercise of appeal rights, or off-duty conduct that does not affect job performance. Violations of related constitutional or statutory rights also are prohibited.

This list of merit system rights was expanded-and the Civil Service Reform Act significantly strengthened-by the Whistleblower Protection Act of 1989 and its 1994 amendments.

On paper, these laws provide strong legal protections against retaliation by federal employers. But enforcement has been abysmal. Federal employees seeking protection largely must rely on the Office of Special Counsel-an agency that historically has been indifferent and even hostile to whistleblowers-and an inadequate administrative law forum, the Merit Systems Protection Board.

In addition to the Civil Service Reform Act and the Whistleblower Protection Act, the federal government has passed 28 whistleblower protection provisions. These are tucked into various federal laws-such as environmental or public health and safety statutes-to shield employees who help to enforce those laws. The laws often cover federal, state and local government workers as well as private-sector employees. They generally prohibit retaliatory discrimination against whistleblowers in broad terms, rather than listing specific illegal reprisals. The most commonly used statute is the Occupational Safety and Health Act (OSHA); about half of the statutes involve environmental protection. Generally, the forum for protecting these rights is an administrative law hearing at the Department of Labor. Those challenging fraud in federal contracts are entitled to a federal district court trial under the False Claims Act.

Federal protection for private-sector whistleblowers is largely limited to these piecemeal protections in environmental and other statutes. Because there is no comprehensive federal law that prohibits employers in the private sector from retaliating against whistleblowers, some states have adopted common-law remedies under the "public policy exception to the employment-at-will doctrine." This means that private-sector employees who work without a contract can no longer be fired "at will" for blowing the whistle on an issue of particular importance to the public, such as health or safety. In the past, such an employee could be fired for any reason or no reason. But today, 42 states and the District of Columbia offer protection to private-sector workers who suffer discrimination for speaking out in defense of the public. Alaska is one of these states (see page 11 for more details).

Although each state interprets the public policy exception differently, most classify retaliatory discharge as a tort, which is a wrongful act for which a civil action can be brought in court. Employees who file suit are entitled to jury trials and, if successful, possible punitive damages (a monetary award beyond the actual loss, to punish the source of the damage and deter its recurrence). Generally, these laws have one- to two-year statutes of limitations.