Part I: Roadmap and the failings of laws that focus exclusively on anti-retaliation
Increasingly, nations have come to recognize the important role whistleblowers play in preventing fraud, corruption, and public health crises. However, most whistleblower laws and programs around the world are woefully inadequate or nonexistent. This four-part series explores basic provisions necessary in any whistleblower program, particularly in today's globalized world, in which illegal activities are often international or transnational in nature. Lastly, this series will touch on and provide specific recommendations for current whistleblower initiatives such as the EU Whistleblower Directive.
For many years the United Kingdom's Public Interest Disclosure Act (“PIDA”) has been erroneously cited to as an example of an effective whistleblower law. Unfortunately, in reality, the law has not worked. A detailed report published in 2020 by the All Party Parliamentary Group on Whistleblowing, a non-partisan grouping of members of the Parliament of the United Kingdom, documented numerous problems with PIDA including the following:
- “[A] low success rate for whistleblowing cases.”
- More whistleblowers represent themselves rather than hiring lawyers. Meanwhile, employers are hiring more legal professionals than ever before, compounding a “David vs Goliath” system in which whistleblowers have a low rate of success.
- Female whistleblowers are even less likely than men to have legal representation or win their PIDA cases.
- “The low success rate is compounded by the more holistic negative outcomes for whistleblowers including discrimination, damage to their health and wellbeing, employability and financial independence.”
- The percentage of whistleblowers who went on sick leave rose from 24% in 2015 to 39% in 2018, indicating that retaliation in the workplace is becoming more aggressive and more difficult for whistleblowers to withstand.
The failure of PIDA was also fully documented in a report by Blueprint For Free Speech, which concluded: “The Public Interest Disclosure Act (PIDA) is broken and no longer able to adequately protect whistleblowers.” This study also correctly noted that traditional anti-retaliation laws can only give protection after an employee has suffered from retaliation:
The problem with [traditional anti-retaliation laws] is that a whistleblower has to wait until after they have suffered retaliation before they can obtain ‘protection' and their right to make a claim crystallizes. By then, the emotional, financial and psychological damage has most likely occurred. A whistleblower can only seek protection once the damage has been done.
These problems, inherent to PIDA, are shared by other nation-states' laws that predicate whistleblower protections on remedies to address retaliation. In fact, even in the United States, which has some of the most advanced anti-retaliation laws in the world, the percentage of whistleblowers who are able to prevail in retaliation cases is very low. Although the Office of Occupational Safety and Health (“OSHA”) under the U.S. Department of Labor (“DOL”) has jurisdiction to investigate and issue initial rulings in on numerous U.S. anti-retaliation whistleblower laws, just like under PIDA, the ability of whistleblowers to prevail (particularly in cases in which an individual whistleblower must legally battle a major corporation with unlimited legal resources), is extremely low as shown by OSHA's own statistics on the whistleblower cases it investigates. Ultimately, whether under OSHA, PIDA, or another anti-retaliation law, the prospect of prolonged and costly litigation against a very powerful and well-financed employer has a chilling effect on the willingness of employees to report fraud.
Consequently, in order to actually ensure effective whistleblower protections states should explore different remedies and procedures beyond those offered in PIDA and similar legislation; the mistakes of PIDA must not be reproduced. Specifically, as explored in depth in Parts II-IV of this series, the following steps are necessary to ensure an effective whistleblower legal regime:
- Whistleblower reward laws must be enacted to combat specific legal violations, including foreign bribery, money laundering, tax evasion, securities frauds, government procurement fraud, and ocean pollution.
- Tailored free speech standards should be explicitly incorporated into whistleblower legislation to ensure that whistleblowers are not chilled from making vital disclosures by the threat of libel suits, being compelled to pay reverse attorney's fees, or similar retaliatory legal actions.
- Anti-retaliation provisions must be updated to ensure that whistleblowers are made whole for both the immediate economic and reputational harm they suffer, and the long-term effects of retaliation.
- Whistleblower protections must be expanded to cover disclosures permitted under international anti-corruption conventions and encourage whistleblowers to cooperate with foreign law enforcement agencies, as authorized under those treaties.
Because the authors of this series have, are currently, and will continue to be engaged in the EU's process of creating and implementing whistleblower laws, Part V of this series culminates specific recommendations for EU states creating legislation to transpose the new EU Directive on whistleblowing.
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