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Recent Federal Legislation Regulating Whistleblowing

whistleblower defense

A whistleblower is defined as an individual who exposes any type of workplace hazard, dangerous condition, threat to health and safety, or other wrongdoing. A whistleblower also includes those individuals who expose unethical, illegal, or dangerous behavior by their employer. In the United States, there are several whistleblower protection laws and regulations. The Occupational Safety and Health Act (“OSH Act”) is the main federal legislation by which individuals file complaints alleging employer misconduct or other dangerous conditions. OSHA administers more than 20 whistleblower statutes such as the Clean Air Act (“CAA”), the Toxic Waste Disposal Act (“TWDA”), the Federal Water Pollution Control Act (“FWPCA”), the Affordable Care Act (“ACA”), the Consumer Financial Protection Act (“CFPA”), the Consumer Product Safety Improvement Act (“CPSIA”), the FDA Food Safety Modernization Act (“FSMA”), and the Sarbanes-Oxley Act (“SOX”), as some examples.

These laws and regulations protect employees from workplace retaliation after engaging in certain protected activities such as reporting workplace violations or illegal employer activities. The employee in these circumstances must have a reasonable belief that their employer is violating some law. Various legislation in the United States regulate whistleblower protection. Most prominent are the Freedom of Information Act of 1966, the Whistleblower Protection Act of 1989, and the Federal Employee Anti-Discrimination and Retaliation Act of 2002.

  • The Freedom of Information Act of 1966 (“FOIA”): FOIA is a powerful piece of legislation that enables individuals to pursue whistleblower complaints. It provides individuals with the access they may need to view records, documents, or other information about their government or from a federal agency. There are also exemptions under FOIA by which federal agencies can withhold records and refuse to disclose information in response to a request. Typical examples of such exemptions include national security concerns, privacy of the requested information, and law enforcement interests. If an exemption does not apply, federal agencies are required to disclose the requested information to the individual requesting access.
  • The Whistleblower Protection Act of 1989 (“WPA”): The purpose of this Act is to protect whistleblowers who are retaliated against by their employers or supervisors after disclosing certain waste, corruption, illegality, etc. by the government that the whistleblower reasonably believes constituted a violation of the law, abuse of authority, gross mismanagement of power, waste of funds, or a danger to public health and safety. Such retaliatory action can include termination, demotion, or reduced pay. In these cases, the whistleblower is protected.
  • Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (“No FEAR Act”): The No FEAR Act prohibits federal supervisors from engaging in unlawful discrimination and retaliation against their employees and holds these supervisors accountable for violating federal whistleblower protection laws. Under this Act, federal agencies are required to publish reports that describe the number and nature of discrimination and retaliation complaints filed against them and how these federal agencies are working to promptly resolve such complaints.

In addition to the above statutes, there is a pending statute in Congress called the Whistleblower Protection Reform Act of 2019. This bill—H.R.2515—was introduced in May 2019 and received in the Senate and referred to the Committee on Banking, Housing, and Urban Affairs in July 2019. The pending legislation would amend the Securities and Exchange Act of 1934 to modify the definition of “whistleblower” to extend the anti-retaliation protections that are provided to whistleblowers.

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