Understanding Whistleblower Protection Programs

Unlawful activities and abuse of law may occur in any organisation, whether private or public, large or small. They can take many forms, corruption, fraud, businesses’ malpractice or negligence. If they are not addressed, they can result in serious harm to the public interest.

People who work for an organisation or are in contact with it in their work-related activities are often the first to know about such occurrences and are, therefore, in a privileged position to inform those who can address the problem.

Persons who acquired such information in the context of their work-related activities and report about it (‘whistleblowers’) feed national and EU enforcement systems. This helps to prevent and address breaches of EU law. Providing whistleblowers with strong protection against retaliation is essential to encourage reporting and strengthen the effectiveness of EU law. Giving whistleblowers this protection is also key for safeguarding their freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union.

Whistleblowers are one of the best tools for detecting crime, but these individuals are often subjected to retaliation for their actions. That’s why whistleblower protections are so vital.

Legal Frameworks for Whistleblower Protection

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the ‘Whistleblower Protection Directive’) sets minimum standards at EU level, aiming to guarantee a high level of balanced and effective protection for persons reporting on breaches of rules (e.g.

At the national level, there has been a growing global interest in establishing whistleblower laws. Whistleblower protections have been enacted in at least 59 countries.

More countries around the world have continued to implement whistleblower laws, especially after the European Union Directive in April 2019. In an effort to support these endeavors, the National Whistleblower Center has sent letters to member countries providing guidance on whistleblower laws and protections.

In 2003, the crucial role of whistleblowers, and the need for whistleblower protection, was recognized as a part of international law when the United Nations adopted the Convention Against Corruption. Support for whistleblower protection in international law can also be seen in the African Union Convention on Preventing and Combating Corruption and the Organization of American States Inter-American Convention against Corruption.

Across international whistleblower laws, the scope of protection can vary widely. Whistleblower laws in some countries, such as India, only protect public employees. Countries also differ on who can qualify as public or private sector whistleblower. Historically, more laws existed to protect public sector employees, but laws that protect both public and private employees have become increasingly common.

OECD (2016) Committing to Effective Whistleblower Protection.

One of the most important protections for whistleblowers is the ability to protect their identity by reporting confidentially or anonymously. Most countries with whistleblower laws include provisions for confidentiality and some countries, such as Slovakia and Australia, provide avenues for anonymous whistleblowing. “Breaking the Silence,” a 2015 report by BluePrint for Free Speech, evaluated confidentiality protections in G20 countries.

While many countries have made progress in adding new protections, studies continue to show major weaknesses in whistleblower protection. In 2018, a BluePrint for Free Speech report also evaluated whistleblower laws in the European Union.

To learn more about the importance of whistleblower reward laws, read The New Whistleblower’s Handbook, the first-ever guide to whistleblowing, by the nation’s leading whistleblower attorney.

The Whistleblowers’ Protection Law was enacted in 2018 (slightly modified and improved in 2020), provides for a system of protections and incentives for whistleblowers, i.e. Whistleblowers are afforded protections as they are vulnerable to various kinds of threats and harm. For instance, the law provides to keep the whistleblower’s identity secret, under heavy penalty of the law. A whistleblower may also be protected from any physical harm as well as from acts of retaliation in both his/her professional office or career. Criminal exemptions, i.e. the Whistleblower may be exempt from penalty if he/she discloses information prior to the authorities discovering the act of corruption.

Whistleblower protections can also take a wide range of forms. These include sanctions against perpetrators of retaliation, the right to refuse to participate in wrongdoing, and, in some cases, physical protection for whistleblowers and affected family members.

Reward laws are the most powerful tool for incentivizing whistleblowers to report. In 2015, the National Whistleblower Center published a report on the topic, Whistleblower Reward Programs: An International Framework for the Detection of Corruption and Fraud.

Whistleblower reward laws are highly effective at incentivizing whistleblowers, including whistleblower in countries around the world, to report fraud, waste, and abuse.

In South Korea, the National Tax Service maintains two reward programs which allow individuals with significant information on tax law violations to report. In 2014, the Canadian Revenue Association introduced a reward program for whistleblowers to report tax fraud. In the year following the introduction of the law, previously unreported offshore income and assets doubled. In 2015, Ontario became the first Canadian province to introduce a whistleblower reward law for reporting securities fraud.

The Ghanaian Whistleblower Act was the first to introduce whistleblower rewards in Africa. In 2020, Ghana also introduced new incentives for whistleblowers, leading to an increase in the number of reports by whistleblowers.

Whistleblower Retaliation and Protected Disclosures

Whistleblower retaliation occurs when an employer (through a supervisor, administrator, or other person with authority) takes an adverse employment action against an employee for making a protected disclosure.

To be protected, a disclosure must meet the following criteria:

• The disclosure must be based on a reasonable belief that the alleged wrongdoing has occurred.
• The disclosure must be made to a person or entity that is authorized to receive it.

The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 prohibit Federal agency officials from taking, not taking, or threatening to take or not take a personnel action (e.g., a poor performance review, demotion, suspension, reassignment) against employees or job applicants who disclose:

• violation of a law, rule, or regulation;
• gross mismanagement;
• gross waste of funds;
• abuse of authority;
• a substantial and specific danger to public health or safety; or
• censorship related to scientific research if censorship meets one of the above-listed categories.

In general, HHS civilian employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.

Office of Special Counsel (OSC). OSC has primary jurisdiction over retaliation complaints for most HHS employees. OSC has the ability to seek a temporary stay of a pending personnel action and can seek to correct a retaliatory personnel action on an employee’s behalf.

Public Health Service Commissioned Corps from retaliation for making protected communications. The MWPA also prohibits restricting members from communicating with OIG or a member of Congress.

If you are an HHS employee and believe a retaliatory action was taken against you that affected your security clearance, you may submit a complaint to the HHS OIG Hotline.

The Inspector General Act requires HHS OIG to designate an individual to serve as the Whistleblower Protection Coordinator (WPC).

The Role of Whistleblowers

Whistleblowers around the world can play a powerful role in challenging corruption, transnational crime, and environmental destruction.

Whistleblowers play a critical role in reporting fraud, waste, and abuse and protecting public health and safety. § 4712 and Presidential Policy Directive 19 (PPD-19). § 1034, and cannot be restricted from communicating with OIG or a member of Congress.

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