The Risks of Retaliation
Most whistleblowers will face some form of retaliation from their employers, peers, and colleagues after they blow the whistle. Yet, whistleblower retaliation does not always take the same form. Relation can range from outright termination of contract, forced relocation in company, pay deductions, social ostracization, etc.
According to a study from Bradley University professor and Bradley University Center for Cybersecurity Director, Dr. Tanya Marcum and Dr. Jacob Young respectively, published in the DePaul Business & Commercial Law Journal, nearly two thirds of whistleblowers had experienced the following forms of retaliation: 69% lost their jobs or were forced to retire; 64% received negative employment performance evaluations; 68% had work more closely monitored by supervisors; 69% were criticized or avoided by coworkers; and 64% were blacklisted form getting another job in their field.
Whistleblower stories are rife with these unfair retaliatory actions. Almost every whistleblower has a similar story. Many are blindsided as they believed their superiors would correct the oversight, not punish them for speaking out. Whistleblowers must weigh the inherent risk of exposing fraud and many suffer the consequences.
Look to the case of National Whistleblower Center Whistleblower Leadership Council chairwoman and FBI whistleblower, Jane Turner, who blew the whistle on gross oversight within the FBI. In retaliation for exposing FBI failures, Turner was removed from her position and transferred to an office without a desk or a chair. She was subjected to fitness for duty reviews while coworkers were instructed to avoid and ignore her. Eventually, she was removed from service for an entire year.
She believed she would be safeguarded by her superior’s similar views on the misconduct brought forward. Instead, she faced harsh retaliatory measures. These experiences can be demoralizing and damaging to a whistleblower’s reputation and livelihood. However, many whistleblowers are firm in their belief that if given the same circumstances, they would blow the whistle again.
Whistleblowers are not always guaranteed protection from reprisal and retaliatory language. When superiors take to the offensive, it can place whistleblowers in jeopardy. Especially when the retaliator in question is the subject of the exposure, as is the case with the intelligence whistleblower who filed a report about misconduct in the Trump Administration.
The intelligence whistleblower was threatened with violence and had their credibility questioned by those within the Administration. The President implied use of violent methods to punish potential whistleblowers, something the National Whistleblower Center strongly condemned. The threat of reprisal is a principal fear for whistleblowers, however, there are tools in place that can protect whistleblowers from retaliation before they even blow the whistle.
Whistleblowing can be a daunting task for those considering confronting fraud and misconduct. While there exists a vast framework of laws, laws for whistleblowers vary from agency to agency, sector to sector, even public employees to private employees. In many instances, these protections are inadequate.
For federal employees, the avenue to blow the whistle can be labyrinthian and confusing. There is no single federal agency that oversees whistleblower complaints and protections. Whistleblowers are able to look to the Merit Systems Protection Board (MSPB) for accountability and protection. The MSPB was created to defend whistleblowers from unfair retaliatory action in the 1970s, but has not had a quorum since January 2017. Without oversight from a governing board, whistleblowers may be at greater risk of losing their cases.
Federal employee whistleblowers can also turn to the US Office of Special Counsel to address their complaints. However, while this office can field complaints from a whistleblower, it does not have the ability to enforce rulings on the agencies in a whistleblower’s complaint.
Due to the patchwork protections at play, both federal and non-federal whistleblowers rely on other statutes and legislation to protect themselves. Many of these laws can mitigate the effects of retaliation through anti-retaliation provisions and financial rewards like: the False Claims Act for fraud related to government contracting, the Dodd-Frank Act that assists with securities and commodities fraud, or the IRS’ whistleblower law, which assists with the prosecution of tax fraud.
In a recent success for anti-relation provisions, the Taxpayer First Act expanded protections for tax fraud whistleblowers who file claims under the IRS whistleblower program. These new protections include the right to reinstatement, no mandatory arbitration, and compensatory damages, as well as expeditious administrative remedies with the right to go to federal court for a jury trial.
Whistleblower protection is one of the National Whistleblower Center’s key priorities. Educating potential whistleblowers on best practices to reduce risks to them and their families can prevent severe whistleblower retaliation. To learn more about NWC’s Legal Assistance Program and how we assist whistleblowers, please visit our Find an Attorney page here.
Our board chairman and co-founder, Stephen Kohn, has also authored 10 Things to Know Before You Blow the Whistle, a crash-course guide on safeguarding yourself before fraud is reported. These ten tips provide fast, but in-depth knowledge for those about to blow the whistle.
For extended guidance and information, consult the New Whistleblower’s Handbook also authored by Stephen Kohn. Additionally if you have misconduct to report or want to contact an attorney, please fill out a confidential intake form.
Cybersecurity Best Practices
The National Whistleblower Center proudly offers educational information to those preparing to blow the whistle. The National Whistleblower Center recently entered a research partnership with the Bradley Center for Cybersecurity in order to inform legislation and practice focused on protecting whistleblowers from retaliation. Protecting yourself and your information can be a crucial step in successfully blowing the whistle and potentially avoiding undue whistleblower retaliation.
As whistleblowers can jeopardize themselves before they even get the chance to report wrongdoing, the National Whistleblower Center urges whistleblowers to safeguard themselves online before going to the proper authorities. Read our cybersecurity best practices for whistleblowers to learn more.