Pass the AI Whistleblower Protection Act

Coverage and Anti-Retaliation Protections

The bill provides protections for individuals’ testimony in administrative and judicial proceedings and covers aiding in government investigations. It contains anti-retaliation protections that prohibit employers from discharging, demoting, suspending, threatening, blacklisting, or harassing any covered individuals related to their protected activity.

The bill also covers individuals who make disclosures internally via existing company compliance programs or to their supervisors. The protections for those who disclose to a person with supervisory authority over them or someone with the authority to investigate, discover, or terminate the misconduct, would help create a stronger risk management culture within the organization, countering the current chilling effect on internal reporting.

Legal Recourse and Remedies for Whistleblowers

AI whistleblowers who experience retribution would gain the ability to submit grievances to the Labor Department and pursue remedies through federal courts. These remedies include job restoration, twice the amount of back wages owed, and compensation for damages. The legislation also explicitly states that these protections for AI whistleblowers cannot be surrendered through employment contracts or forced arbitration clauses.

Complaint Filing and Adjudication Process

The law follows the standard procedures set forth in whistleblower law, such as the Sarbanes Oxley, Taxpayer First, and auto safety laws. It does so by requiring an initial complaint to be filed with the Department of Labor, which has the authority to fully adjudicate the claims and protect the whistleblower. It permits the whistleblower after 180 days to file a complaint directly in federal court seeking full relief available from courts and to present their case to a jury of peers. This protects whistleblowers from the long delays often experienced in administrative cases and ensures that they can present their case to members of the community rather than a single judge.

Statute of Limitations and Prohibition of Contractual Waivers

The statute of limitations for filing a claim is a minimum of three years, but can be extended based on the information that is presented. An action must be brought within six years of the violation, or three years of when the covered individual knew or should have known the relevant facts, but never more than 10 years after the violation occurred. This is a progressive feature in the law, giving whistleblowers ample time to secure new employment prior to engaging in a public legal case against their former employer. An essential aspect of the law is its strict prohibition against contractual waivers of whistleblowers’ rights, whether they are obligations to submit complaints to mandatory arbitrations or signing restrictive non-disclosure agreements. Employers’ use of contracts to circumvent whistleblower laws has a troublesome history, which, consistent with all modern whistleblower laws, the statute would prevent.

Damages and Overall Significance

Should a whistleblower be wrongfully terminated, the law provides a fully make-whole remedy, including back pay, benefits, reinstatement, and compensatory damages. If a whistleblower prevails, the company must pay attorneys’ fees and costs. Although the statute does not have punitive damages, it does have a double back pay provision, which serves a similar purpose. Double back pay also protects whistleblowers from having to meet the extremely heavy burden required to demonstrate punitive damages.

This law is a significant step forward in ensuring that employers, senior managers, and appropriate government officials can obtain early warnings of significant harmful impacts that can arise from misconduct in the development and deployment of AI. Most significantly, it is a necessary safeguard against the well-documented risks to the public interest.