All Things Whistleblower: A GAP Blog

Whistleblower Rights in Bailout Bill

GAP and other groups sent a letter to key House and Senate Committees yesterday urging for stronger whistleblower protections to be included in the much-covered “bailout bill” that is monopolizing Congress’ time at the moment. From the Washington Post:

"At a minimum, any credible solution must address one of the current crisis' fundamental causes -- corruption and other abuses of power sustained by secrecy," the letter said. "Otherwise, the taxpayers could end up giving $700 billion more to repeat the same disasters. Congress must prove it has learned this lesson. Any genuine solution must be grounded in transparency, with all relevant records publicly available and best practice whistleblower protection for all employees connected with the new law."

The article (citing GAP) details the need for immediate changes to be made to existing law:

One way or another, the coalition hopes the amendments become law soon. They are designed to close looming loopholes that are the result of court decisions.

While the law sought to protect whistle-blowers for "any" lawful disclosures of government wrongdoing, the U.S. Court of Appeals for the Federal Circuit has turned the definition around so much that it's reminiscent of President Bill Clinton saying: "It depends on what the meaning of the word 'is' is."

Now, "any" no longer applies "if the disclosure is made to co-workers, supervisors or others in the chain of command, or those suspected of wrongdoing; if the disclosures are made during the course of doing one's job duties; if the disclosure challenges illegal or similarly improper policies; and if the whistleblower is not the first to make a disclosure," said Tom Devine, legal director of the Government Accountability Project.

The amendments would make "any" mean "any."

Another sore point with the coalition is a 1999 court decision that Devine says makes it almost impossible for whistle-blowers to qualify for protection, regardless of context. While Congress said employees must reasonably believe a disclosure is about misconduct, the court said workers must prove the bad deeds with "irrefragable" evidence.

-- Dylan Blaylock

OpenTheGovernment's New Report

OpenTheGovernment.org, an important coalition partner of GAP and a great advocate of government transparency, recently released their 2008 Secrecy Report Card. This annual report identifies important trends in public access to government information. It's worth checking out!

-- Dylan Blaylock   

Senators Fighting the DOL, New GAP Report, & More Editorial Support

There’s some great coverage of whistleblower issues and developments in the news today.

First, Senators Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) have sent a letter to the Department of Labor accusing it of “violating the ‘spirit and goals’” of the Sarbanes-Oxley whistleblower protection provisions by repeatedly dismissing retaliation cases brought by employees of subsidiaries (as opposed to publicly-traded companies). The senators are urging the DOL to stop using the “overly restrictive interpretation” of the law.

The senators are absolutely correct to do this. GAP’s Tom Devine explained (from the Wall Street Journal):

Tom Devine, legal director of the Government Accountability Project, a nonprofit group that promotes whistleblower rights, called the department's stance "dysfunctional," saying: "This one is a no-brainer. There is nothing in the law that allows for that type of loophole."

GAP wrote an op-ed about this very issue in 2006.

Next, GAP is releasing a report today which details the current (and dangerous) landscape of corporate whistleblower laws and recommends strategies for corporate whistleblowers to best protect themselves from future retaliation.

This report is excerpted from a comprehensive corporate whistleblower survival guide, Committing the Truth, scheduled for publication next year. In more coverage for SOX (from the Financial Times):

The 2002 Sarbanes-Oxley Act, which contained new pro-whistleblower provisions when it was passed in the wake of the Enron and WorldCom scandals, "has helped few whistleblowers actually achieve justice", according to the Government Accountability Project, an advocacy group that provides legal advice to whistleblowers.

"Access to jury trials has proved elusive, and other institutions . . . have engaged in systematic, hostile activism against the congressional mandate," it says in a report today.

Lastly, the Delaware County Times is the latest newspaper to join the groundswell of support in calling for both houses of Congress to come together and pass strong whistleblower rights over the next few weeks.

A good media day for whistleblowers, indeed.

-- Dylan Blaylock

 

Subsidiary Cover

The Department of Labor has been dismissing retaliation suits raised by whistleblowers because they are employees of subsidiaries of publicly traded companies, rather than the companies directly. The numbers associated with whistleblower success, while not surprising, are indicative of the Bush administration’s overall view toward whistleblowers. From the Wall Street Journal:

The government has ruled in favor of whistleblowers 17 times out of 1,273 complaints filed since 2002, according to department records. Another 841 cases have been dismissed. Many of the dismissals were made on the grounds that employees worked for a corporate subsidiary, says Richard Moberly, a University of Nebraska law professor.

He studies issues involving workers who face retaliation from employers for reporting wrongdoing, and based his findings on department data. The rest of the cases are either pending, withdrawn or were settled.

The Sarbanes-Oxley Act of 2002 gives employees of publicly traded companies protections, but authors of that bill state that the protections are supposed to cover subsidiary employees as well.

Sen. Patrick Leahy, a Vermont Democrat who helped craft the whistleblower provision -- part of the Sarbanes-Oxley corporate governance act -- says the law was meant to cover workers in corporate subsidiaries. "Otherwise, a company that wants to do something shady, could just do it in their subsidiary," he said.

Leahy’s right. If you don’t close corporate loopholes, wrongdoing and corrupt practices will always run to where they have cover.

- Dylan Blaylock

New Whistleblower Protections for 20 Million

Yesterday, President Bush signed the Consumer Product Safety Commission Reform Act, enacting law that protects American consumers by, among other ways, providing whistleblower rights to nearly 20 million workers. The legislation provides protections, enforceable by jury trials, to workers connected with the manufacture, distribution, and retail sale of products ranging from toys to clothes, linens, car seats, hardware and household appliances.

Since last October, GAP has led a coalition that swelled to 102 organizations demanding whistleblower rights in this reform.

This reform translates to real protection where it is sorely needed. Examples of safety concerns that workers have been previously fired for, who now would enjoy legal protections against those actions because of the bill, include:

• Smoke detectors that are fire hazards themselves
• Faulty home furnace wiring that sparked fires
• Baby play seats with brittle plastic that could crack and cause fatal falls
• Defectively-designed infant car seats with a greater chance of causing death for some age groups than the car accidents themselves
• Unsafe lighting fixtures whose faulty wiring and insulation could spark shocks or electrocution

-- Dylan Blaylock

The FISA bill & Telecom Immunity – Contact Your Senator

GAP is opposed to the new FISA bill, which would provide retroactive immunity to telecoms that allowed the Bush administration to illegally spy on their customer’s calls and e-mail. GAP client Babak Pasdar was instrumental to defeating such a provision that last time it was up for debate. Unfortunately, amnesty for phone companies has gained new traction in the FISA bill, which is scheduled to be voted on Tuesday. A nifty new tool enables you to directly contact Senators to tell them to vote for the Dodd-Feingold-Leahy amendment (S.A. 5064 to H.R. 6304).

Click on the following link or paste it into your browser: http://firedoglake.com/2008/07/02/blue-america-launches-whip-count-call-tool-on-fisa/

The nifty aspect of this tool is that it will help you phone your Senators AND also provides the ability to track positions on FISA given your input.

-- Jesselyn Radack

The CPSC Bill(s)

Yesterday, the Senate passed high-profile legislation to reform and strengthen the Consumer Product Safety Commission. Included in this legislation, which GAP strongly advocates, are whistleblower protections for workers who report safety concerns regarding products in commerce.

The bill now heads to a joint House-Senate committee for reconciliation – last year the House passed a version without these strong whistleblower protections, which are also opposed by the White House. From the Chicago Tribune:

As the lawmakers negotiate a compromise, the areas where lobbying will be most intense include proposals to protect whistle-blowers who expose dangerous products at their companies and a provision to give state attorneys general greater power to enforce safety laws.

GAP and coalition partners will be involved in spreading the word about how necessary these worker protections are for ensuring family and child safety. Americans deserve to know that toys they buy for their children are safe. Without these protections, whistleblowers who wish to report serious safety concerns about products will be heavily deterred from doing so.   

Almost lost in the coverage of this bill, however, was another passing of Senate legislation from Wednesday night. That’s when the Senate approved a measure to ban industry-paid vacations and travel for all employees of the CPSC.

Seems like that should have already been a law, right? Well, it actually took a scandal to serve as an impetus for the bill. This law is a direct result of investigatory articles from late last year detailing that Nancy A. Nord, CPSC Chairwoman, took “dozens of trips” on the dime of several industry lobbyists that she is in charge of regulating, including those from “toy, appliance and children’s furniture.”

Days before that story broke, Nord came out publicly opposing the CSPS strengthening legislation, including the whistleblower provisions, and people were a little confused as to why. But then the story hit, and things were made a little clearer.

Altogether, it appears that Nord received almost $60,000 worth of travel and expenses for her trips, which included “China, Spain, San Francisco, New Orleans and a golf resort on Hilton Head Island, S.C.”

Overall, a couple of very good bills. Now on to the next steps.

-- Dylan Blaylock

CPSC Showdown Next Week

In a masthead editorial today, the Washington Post comes down on the correct side of an important and pressing issue GAP has been involved with – legislation to strengthen the role and power of the Consumer Product Safety Commission. The bill allows that department, which is charged with regulating the safety of consumer products, to increase funding, introduce new and better safeguards, and make it easier and quicker for consumers to find out about potentially unsafe products.

But one crucial part of the bill is the enhanced anti-retaliation protections it would provide to workers who expose product safety concerns. The bill protects whistleblowers who work for retailers, manufacturers or distributors of a product in commerce. From the editorial:

The commission and manufacturers have also complained about new authority the legislation would give to state attorneys general to monitor and address safety hazards, as well as new protections that would be afforded whistleblowers in manufacturing. Like the consumer complaints database, however, these changes would promote transparency, oversight and general good behavior.

Two days ago, GAP signed onto a letter with 45 other good government and consumer protection organizations in support of the bill. And yesterday, GAP and Public Citizen disclosed Senate Republican Caucus “talking points” attacking the bill, with objections to whistleblower protections being the first item in the Republican Caucus broadside. The talking points were compiled by the office of Sen. Jim DeMint (R-SC) and constitute a wholesale attack on this legislation that protects America’s families from unsafe products. The talking points appeared to mirror objections from the National Association of Manufacturers.

-- Dylan Blaylock

Bad Decision for Government Accountability

Yesterday, the Supreme Court refused to hear a case brought forth by the ACLU against the Bush administration for its controversial warrantless wiretapping program, a scandal partially exposed by an AT&T whistleblower.

This big blow to government accountability, and the checks-and-balances system as a whole, is made worse by the rational SCOTUS used to make its decision. From the Los Angeles Times:

…Bush's lawyers successfully invoked two legal doctrines making it difficult to challenge the government's anti-terrorism policies.

First, they said, challengers must show that they had their phone calls or e-mails intercepted. Otherwise, they have no "standing" to sue because they have no injury to complain of. Second, the government said, the entire program was secret, and under the "state secrets privilege," plaintiffs cannot obtain information on whether they were targeted for surveillance. When combined, the two doctrines make it almost impossible for most challengers to win a hearing in court.

So, if American citizens want to challenge secret (and illegal) actions, SCOTUS believes we can’t, unless we know enough about who the actions specifically affected. Which remains a government secret, despite obvious illegality. And citizens already have evidence the wrongdoing happened on a grand scale.

Bad decision for government accountability.

-- Dylan Blaylock

Questionable FOIA Oversight Move

This GovExec article explains how the White House is being attacked for shifting a Freedom of Information Act oversight office from the National Archives to the Department of Justice. The creation of this office was signed into law by President Bush in December in order to increase and improve government transparency, but critics of the shifting of a key ombudsman position say this is a shady maneuver designed to undermine the intent of the law.

-- Dylan Blaylock