Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Budi Suharto (right in photo) visited me at the National Whistleblowers Center today.  Mr. Suharto is the Head of Bilateral Cooperation II Section of the Ministry of Finance of the Republic of Indonesia. We discussed how in both the United States and in Indonesia, recent criminal prosecutions of whistleblowers raise a concern that other employees with information about corruption may be discouraged from coming forward. In the United States, the prosecutions of Bradley Birkenfeld and Thomas Drake, and the detention of Bradley Manning, remain active deterrents against whistleblowing. We discussed my recent submission to the United Nations Universal Periodic Review (UPR) of the United States. Attachment B to that submission contains citations to studies showing that employee reports are the best way to detect fraud, corruption and other violations of law.  In searching for ways to detect and deter corruption, protecting whistleblowers and encouraging them to come forward is a good starting place.

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The Wall Street Reform bill, recently reported out of conference, includes a number of provisions designed to protect employees who report fraud in the commodity and stock exchanges.  The bill includes two qui tam provisions that protect whistleblowers who disclose “original information” concerning major fraud.

The bill overturns judicial precedents under the Sarbanes-Oxley Act that restricted jury trials and exempted subsidiaries. For the first time employees at “nationally recognized” “statistical rating organizations” such as Moody’s and Standard & Poor’s, have whistleblower protection.

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Today the Supreme Court, by a 5-4 vote, held that one provision of the Sarbanes-Oxley Act (SOX) is unconstitutional.  However, it also held that this one provision is "severable" so that the other provisions of SOX, including the whistleblower protection, are still in force.  The case is Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861 (June 28, 2010). The unconstitutional provision of SOX limited the president's power to remove members of the Public Company Accounting Oversight Board.

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Richard Renner, Legal Director for the National Whistleblower Center, spoke today with Local #1812 of the American Federation of Government Employees about the need for improved whistleblower protections for government employees. “The plight of federal employee whistleblowers is that they have fewer protections than employees in the private sector. The present system is broken, and we need to work together to fix it,” Renner explained.

Under current law, federal employees are denied the right to bring their claims of government misconduct in front of a jury. The Whistleblower Protection Act of 1989 forces federal employee whistleblowers to have their cases heard before an administrative agency such as the Merit System Protection Board, where federal employees’ claims are not fairly adjudicated. The National Whistleblower Center supports the HR 1507 version of the the Whistleblower Protection Enhancement Act (WPEA). In 2007, House of Representatives passed the WPEA with a large bipartisan majority. It has still not passed the Senate. H.R. 1507 would give every federal employee the right to eventually have their claims heard by a jury.

This blog post was written by intern Kevin Heade.  Photo by intern Phil Shank.

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The Jamaican Senate is scheduled to debate a comprehensive whistleblower bill this Friday. Justice Minister Senator Dorothy Lightbourne released the proposed text of the Protected Disclosure Act (Whistle-blower Law) 2010, according to Jamaica Observer. The bill fulfills a 2007 election promise of the Jamaican Labour party.  It would protect both public and private sector employees, including independent contractors and non-profit organizations.  It would require employers to designate an official who would be responsible for investigating whistleblower disclosures. The bill would also make it a criminal offense to retaliate against a whistleblower, and provide a witness protection program. However, the bill would not protect disclosures that violate attorney-client or medical privileges, the Official Secrets Act, or the Corruption Prevention Act. Debate is scheduled to begin this Friday.

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The American Law Institute (ALI) is a private organization of establishment lawyers and law professors that seeks to influence the law by publishing “restatements” of the law. In its noblest work, it seeks to make the law of the 50 united states more uniform by “restating” the law in a cogent organized work. While it generally focuses on what the state of the law is now, it occasionally identifies areas where the law is trending to meet a developing or future need. One might make some inferences about the true loyalty of the ALI by examining where it chooses to venture from what is the law to what the law ought to be.

ALI is now engaged in restating employment law. Last year, ALI declined to see the trend away from employment-at-will and “restated” that employers are free to fire workers anytime, for any reason, or no reason, as long as they do not act for an illegal reason. It ignored the increasing number of laws that prohibit more and more of the most common and pernicious reasons for discharging workers. It ignored the emergence of some jurisdictions, such as Montana and New Jersey, that have effectively banned employment-at-will. ALI stuck its flag firmly in the past, choosing to use its influence to reject modern human resources standards that require documentation of grounds for discipline, and the use of progressive discipline.

This year, on the issue of loyalty, ALI has chosen to deviate from the law as it is and give employers new grounds to sue their employees when they reveal company documents. Last month the ALI approved a new chapter of its Restatement of Employment Law with a controversial section on loyalty left intact.

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The Ghana Anti-Corruption Coalition and the British High Commission in Accra (the British Embassy) have published A User's Guide to the Whistleblower as part of their efforts to eradicate corruption. The 34-page booklet is inspired by a call of Ghana's President, John Evans Atta Mills, to make the penalties for corruption high enough for deterrence. Professor Kenneth Agyemang Attafuah, an editor of the booklet, told the Ghana News Agency (GNA) that corruption goes beyond giving and taking bribes. In addition to economic crimes, "many forms of unlawful and improper conduct negatively affect Ghana's development." 

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