Bills Strengthen Whistleblower Protections for Government, Private Sector Employees

| 03 October 2012

Two pieces of legislation introduced in the US House and Senate this past week aim to protect government and private sector whistleblowers who call attention to alleged wrongdoing.

The first bill, the Whistleblower Protection Enhancement Act of 2012, would protect the release of certain information by government employees.

"Federal employees and the American people must feel confident that those with the courage to come forward to disclose wrongdoing will be protected," wrote Rep. Daniel Akaka (D-HI), the bill's chief sponsor, in a statement.

The bill could, among other things, allow for employees to raise concerns about waste, mismanagement, fraud, abuse and other illegal activities. It would not, however, allow for whistleblowers to disagree with "legitimate policy decisions." The Office of Special Counsel (OSC), which has had a prominent voice in a recent whistleblowing scandal involving the US Food and Drug Administration (FDA), would also be given the right to file amicus curiae briefs with federal courts on behalf of whistleblowers.

Disclosing evidence of the censorship of scientific and technical information would also be given protected status under the bill, and an ombudsman position would be established to educate all agency officials about their rights as whistleblowers.

The bill has passed both the House of Representatives and the Senate, and now awaits President Barack Obama's signature.

A second piece of legislation, the Private Sector Whistleblower Protection Streamlining Actof 2012, would beef up protections for whistleblowers at private companies, including those specifically involved in drugs and medical devices. Information such as a violation of a law, intent to violate a law, the presence of health and safety hazards or fraud would all be protected information under the bill.

Employers would be barred from taking any "unfavorable personnel action"-termination, discipline, pay reduction, withholding of expected benefits, reduction in security clearance, prosecution or any other negative action-against an employee who lawfully discloses information through appropriate channels.

The legislation could be problematic for the pharmaceutical industry in particular, which has been hit with record-setting fines in recent years. Additional protections for whistleblowers-a notoriously difficult activity-could provide additional incentives for informants to act. One new protection which could be particularly beneficial is Section 104 of the bill, which requires employees to keep the name of the whistleblower confidential.

The Department of Labor would also be required to form a new "Whistleblower Protection Office," which would apparently act similar to OSC but with an eye on the private sector instead of on government agencies.

The bill, sponsored by Rep. Lynn Woolsey (D-CA), has been referred to the House Subcommittee on Crime, Terrorism and Homeland Security.


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