What to Know Before Blowing the Whistle

Each whistleblower case is unique, requiring an analysis of the facts before a legal strategy is determined. While the following information is neither comprehensive nor should be construed as offering legal advice, it offers some basic guidance on whistleblower rights before reaching out to experts at Government Accountability Project to further assist you. 

What is

Whistleblowing?

Whistleblower 

Rights

Reconsider

Anonymity

Pre-Disclosure

Checklist

Whistleblowing

Best Practices

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What is Whistleblowing?

A whistleblower is an individual who discloses information that he or she reasonably believes evidences a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.

Disclosures of "Lesser" Misconduct and Policy Disagreements

If the misconduct does not fall into a category of concern as outlined above, it does not mean that the concern isn't important, valid, or even corrosive to workplace integrity. Likewise, an employee may have a legitimate dispute about a decision of management.

However, if an employee’s concern is not about legal violations, gross mismanagement, a gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety, the disclosures would not rise to a level that would meet the standard of “whistleblowing” protected under the Whistleblower Protection Act (WPA) or most other whistleblower protection laws.
 

Similarly, if an employee’s disagreement with a policy decision is rooted in a difference of opinion, rather than about the specific consequences of the policy decision that the employee reasonably believes would result in legal violations, gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety, that policy disagreement would not constitute protected whistleblowing under the WPA.

Whistleblower Rights and Remedies

While various rights and remedies exist in both federal and state laws to encourage workers to blow the whistle on serious abuses, the legal landscape is complicated. No single law protects all whistleblowers; instead, a patchwork of more than 60 federal statutes and numerous state and local laws provide redress. Each law has different remedies, different procedural steps, and different paths for enforcement. Not only can it be difficult to evaluate available legal options depending on each unique set of facts—analysis requires assessing, among other factors, the type of worker one is, which agencies are involved, the content of the disclosure, to whom the disclosure should be (or was) made, and what kind of reprisal was suffered--but it can also be difficult to navigate the legal process once a particular path is chosen.

Below we highlight the primary laws that support the rights of employees and contractors to report serious misconduct they witness on the job.

This list is not comprehensive--it focuses primarily on those legal protections that might apply to employees reporting concerns related to efforts to undermine our democracy. We strongly encourage anyone thinking about blowing the whistle to seek advice from an attorney experienced in representing whistleblowers.

The Whistleblower Protection Act

The Whistleblower Protection Act is the primary law that gives most federal employees, those in the competitive service merit system, the right to report serious wrongdoing free from reprisal. The WPA gives most federal employees the right to disclose information, both internally to co-workers, managers, organizational hotlines, or an agency Inspector General, Congress, or agency enforcement offices, and absent statutory bars or classified status, externally to the media, or watchdog organizations.
 

Employees who are charged with investigating and disclosing wrongdoing as part of their job duties are protected under the WPA for “duty speech”--reporting concerns in the course of doing one’s job about illegality, gross mismanagement, gross waste of funds, abuse of authority, a substantial and specific danger to public health and safety, or censorship of scientific research that would result in such abuses, though an employee would have to show the employer intended to retaliate because of their whistleblowing.

Employees may not publicly report classified or other information prohibited by law from disclosure, but rather must report through alternative, lawful channels, such as an agency Inspector General or the Office of Special Counsel.

Military Whistleblower Protection Act

The Military Whistleblower Protection Act (MWPA) protects servicemembers from reprisal when reporting serious wrongdoing. Under the MWPA, servicemembers can lawfully communicate information concerning a violation of law or regulation, gross management, a gross waste of funds, abuse of authority, a substantial and specific danger to public health or safety, and certain threats by another member of the armed forces or employee of the federal government.

For whistleblower disclosures to be protected under the MWPA, they must be made to a Member of Congress; an Inspector General; a member of a Defense Department audit, investigation, or law enforcement organization; or a person in the service member’s chain of command. Reports of retaliation are made to the Defense Department Inspector General or the inspector general for the relevant branch of the military, which is required to investigate the retaliation claim “expeditiously” under law. The burden of proof is placed differently in military whistleblower retaliation cases than it is in civilian cases. Essentially, military whistleblowers must prove that they were illegally retaliated against, whereas in civilian cases the agency must prove that they did not retaliate.

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In the course of investigating the retaliation claim, the IG must also investigate your underlying disclosure of misconduct if an investigation isn’t already taking place, or if the investigation is inadequate. Within 180 days, the IG must report the status of your retaliation claim to you, to the secretary of defense, and the secretary of the relevant military branch. The IG must continue to send updates every 180 days until the investigation is complete.

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The MWPA process for investigating disclosures and claims of retaliation is exceedingly complex, with specific processes and timelines at each step. Servicemembers who observe wrongdoing or who suffer reprisal for lawfully reporting wrongdoing are encouraged to reach out to expert attorneys at Government Accountability Project who will help to minimize the risk of reprisal while maximizing the power of the information.

Whistleblower Protections for Federal Contractors and Grantees

Government contractor employees and federal grant recipients who work for non-intelligence federal agencies also have whistleblower protections, including access to court and a jury trial if administrative remedies fail. The National Defense Authorization Act (NDAA) for FY 2013 extends with better due process the Whistleblower Protection Act (WPA) rights for federal civil service employees. The NDAA rights cover all individuals working on a government contract or grant, including personal services contractors and employees of contractors, subcontractors, grantees, or subgrantees.

Whistleblower Protections for Intelligence Community (IC) Workers

A separate legal patchwork allows Intelligence Community (IC) employees and contractors to lawfully report wrongdoing and receive protection from retaliation. Created to safeguard classified information while allowing oversight from both internal and external federal watchdogs, the system requires workers, whether they be case officers or analysts or support staff, to follow the disclosure process outlined in the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 to obtain protections from retaliation.
 

The ICWPA allows intelligence professionals to make “protected disclosures” of “urgent concerns” to either their agency’s Inspector General or the Inspector General of the Intelligence Community. Urgent concerns may include serious or flagrant violations of laws, gross waste, or improper administration relating to an intelligence program. Urgent concerns may also include lying to or willfully withholding information from Congress, as well as certain retaliation or threats of retaliation for making a protected disclosure of urgent concern. Even if what you witness may not constitute an urgent concern, reporting violations of law, rule, or regulation and waste, fraud, or abuse through the ICWPA system constitutes protected activity qualifying individuals for whistleblowing protections.

Ironically, the Intelligence Community Whistleblower Protection Act does not outlaw retaliation or include any protection against it. In 2012, President Obama created a reprisal shield through Presidential Policy Directive 19 (PPD-19), which has since largely been codified by Congress. PPD-19 outlaws retaliation in job or security clearance actions for IC employees, and security clearances for IC contractors. It allows them to seek relief through agency Inspector General investigations funneled to review administered by the Intelligence Community Inspector General. 

Illegal Non-Disclosure Policies

It is illegal to gag any federal employee or federal contractor employee from blowing the whistle. In fact, longstanding appropriations law and the Whistleblower Protection Act require that any policy, directive, form, or any management communication limiting employee speech must include explicit language informing employees that their statutory rights to blow the whistle supersede any restrictive terms and conditions of the nondisclosure agreement or policy. The Office of Special Counsel, who enforces this statutory requirement, interprets a management communication to be as broad as an email restricting an employee’s speech either to Congress or the media.

The First Amendment

The First Amendment protects federal employees’ ability to speak in their private capacities, on their own time, about matters of public concern. For speech to be protected under the First Amendment, courts must determine that its public benefit outweighs the government’s interest in efficient operations free from disruption. This uncertain balancing test means an employee will not know whether even matters of public concern can be safely communicated until after a legal ruling that the information is net beneficial. While even confidential policy advisors in an elected official’s inner circle have First Amendment rights, courts have weighed the balancing scales heavily against protecting disclosure. 

Generally speaking, public employees are covered by the First Amendment when engaging in public discourse about political, social, or community concerns as private citizens, such as writing a letter to the editor critical of policy choices or speaking at a public meeting as a concerned citizen, or exercising free speech rights internally where they work. Normally civil servants do not have court access due to a Supreme Court ruling that their administrative remedies are exclusive. That still leaves access for political employees or confidential assistants outside the civil service. Further, in some judicial circuits such as the District of Columbia, even civil servants can obtain injunctive relief against retaliation or prior restraint (efforts by the government to require employees to seek approval before communicating in their private capacities), whistleblowers can challenge First Amendment violations in federal district court.

State & Local Whistleblower Protection Laws

Whistleblower protection laws vary from state to state, with some offering robust local and/or state statutory protections, in addition to common law protections, for public and/or private sector employees who report misconduct. Other jurisdictions and municipalities offer almost no meaningful protections at all.

In addition, existing state laws may or may not be preempted by a federal remedy, and each may have very different prescribed processes and timeframes within which employees must make disclosures or commence legal action.

State, local, and private sector employees should consult with experienced attorneys who specialize in whistleblower law to assess potential legal rights and remedies available at the federal, state and local levels.

Anonymity: Challenges & Consequences

Many whistleblowers want to disclose information while maintaining their anonymity. However, anonymity is not always possible to ensure if the information is used in public ways or through strategic discussions with government investigators, other whistleblowers, or advocacy groups. Indeed, because most employees raise concerns internally first, or because the information can be connected to an employee's job duties and expertise, a hostile employer may be able to identify the source of the information even if not named.

Remaining anonymous may also not be the best strategy. For instance, trying to remain anonymous while the disclosure’s information is public can make a legal case of reprisal more difficult, if not impossible. Under all whistleblower laws, an employee must show that the employer had knowledge of their whistleblowing. Therefore, going public, with the whistleblower serving as a human interest focal point for news stories, can sustain the whistleblower’s viable legal rights.

Whistleblowers who choose to make disclosures publicly may even be able to preempt reprisal by putting the employer on notice that the employee is engaging in protected whistleblowing. When a whistleblower experiences solidarity with a team of allies—advocacy groups, journalists, champions in Congress, a lawyer—focus can more easily be put on the wrongdoing exposed by the whistleblower, undermining efforts to vilify the messenger. Surrounding the whistleblower with support not only can insulate the employee from retaliation, but it also can amplify awareness of the underlying problems to demand reform.
 

Even with strong efforts at protecting a whistleblower’s identity, the whistleblower is still at risk while an employer searches for the internal source. Harassing and expensive to-defend defamation suits can be lodged against journalists and advocacy organizations to force divulgence of sources. Because of limited privileges afforded to journalists and public interest groups, whistleblowers should be wary of unqualified promises of absolute anonymity because it simply cannot be guaranteed. Brokering communications with external parties through an attorney with whom a whistleblower’s communications are privileged can offer an important layer of protection for a whistleblower.

Pre-Disclosure Checklist

Before making any type of disclosure, it is wise to take the following precautions:

Consult with a lawyer, specifically one who has experience helping whistleblowers. Most lawyers aren’t well-versed in whistleblower law, which is extremely complicated. The attorney-client privilege will also ensure that your communications will remain protected and confidential

Create a detailed, contemporaneous paper trail. Keep a log that is a timeline of all relevant developments: what happened, when and to whom you complained, and any resulting retaliation. Record all dates and note the details of any supporting emails, memos, or other documentary evidence.

Print or save any relevant documents you possess such as meeting notes, memos, or emails. One can also record meetings secretly in one-party consent states (including 39 states and Washington, DC), though secret recording usually violates personnel rules.

Keep evidence in a safe place. Authorities usually are not limited in access to the whistleblower’s workplace, but home storage of documents can also be risky, subjecting a whistleblower to pretextual discipline or a retaliatory investigation for theft of documents. Before taking actual documents, you should make sure they are your documents to take. If it is not clear, it is better to photograph or lawfully reproduce the documents, but leave originals in the office. If they are classified, they are not yours to take or reproduce, so doing so is essentially an act of civil disobedience. If you have questions, it is best to consult with counsel before taking action. Regardless, it is advisable to store your evidence with your attorney, where it is shielded by attorney-client privilege. 

Avoid being accused of stealing any documents. In instances where it is not practical or legal to take evidence home, tactics such as mislabeling and misfiling records in your office, to be found later, can prevent their destruction. The strategy means keeping careful notes on a document's substance, but "burying" copies of the actual record in an archive file or an electronic folder with an innocuous name. Be prepared to serve as navigator for law enforcement or other outside investigators to trace where to find copies of the documents that an agency acting in bad faith will claim do not exist.

Make a plan. For example, decide whether and when to blow the whistle internally or externally. When does it make sense to give up on internal channels? What documents, if any, should be shared with whom? Try to predict how those in the agency or department will react and respond to a disclosure.

Converse with family members and loved ones before blowing the whistle. The old adage applies here: plan for the worst and hope for the best. Consider the impact on family members and friends should retaliation occur. This is a decision you must make together, or you may find yourself alone. Develop alternate employment options before drawing attention to yourself. 

Avoid creating any other reason to be fired for cause. Maintain good job performance an follow workplace rules, and if suspected be careful not to take the bait in pretextual confrontations.​

Test the waters with work colleagues and attempt to garner their support, if possible. Determine which colleagues would corroborate your observations or possibly even participate actively in blowing the whistle, although be discreet and start with trusted contacts.

Seek outside help including journalists, politicians, and public interest organizations, judiciously. Solidarity is essential to both making a difference from blowing the whistle on misconduct and surviving the experience.

Best Practices for External Whistleblowing

Before you begin working with a reporter or an advocacy group, negotiate the scope of what you’re willing to disclose, whether you need anonymity, and any other protections or concerns. It is easier for everyone to be clear on the rules from the beginning

If maintaining confidentiality and anonymity is critical, use secure, encrypted means to communicate, including Secure Drop for document exchange, Signal or WhatsApp for texts and calls, ProtonMail or another email platform that uses Pretty Good Privacy (PGP) encryption, or snail mail with no return address.

Don’t communicate with your contacts during your work hours or use office equipment like office phones, computers, or even paper.

Be aware that the best option for your safety may not necessarily be to remain anonymous, but to instead blow the whistle publicly with the help of a lawyer. Public disclosure can help an employee prove that the employer had knowledge of the whistleblowing, a necessary element in a reprisal case. It can also preempt reprisal, particularly when you are supported by a team of allies.

If you intend to leak documents anonymously, make sure that you are not the only person who possesses these documents so they can’t be traced back to you. If possible, send them out innocuously attached to legitimate listserv emails or upload them to an agency server or archiving system. Check whether any traceable marks are encrypted for electronic communications. Above all, unless you want to leave legal rights behind and be a civil disobedience whistleblower, do not make external disclosures with any information marked classified, or whose release is specifically prohibited by a federal statute. Those only can be disclosed internally, to the Office of Special Counsel or an Inspector General. 

Rather than printing secure documents, take pictures of them on your personal secured phone. Your access to the documents may be able to be tracked, and printing will narrow the pool of potential people who have accessed the documents. If you can’t take a photo, make written notes. Again, however, do not take photographs of information for which public disclosure is unprotected. If your phone or camera is seized, you will be blamed for the illegal disclosure and lose your whistleblower rights. 

Instead of providing documents, consider guiding reporters or advocacy organizations in making a Freedom of Information Act (FOIA) request. To do this, make sure problematic policies or practices are in writing. Try to get your agency to spell them out, or do it in your own emails. Be careful that the FOIA isn’t so specific that it tips off the agency that there is a whistleblower. If the agency denies their existence and you have “buried” copies of the records in camouflaged locations, teaming with the requester to expose that cover-up can be a significant development when challenging broader misconduct.
 

Make sure that any documents you send are stripped of meta data such as photo locations, watermarks, or tracked changes.

Contact Government Accountability Project

 We are the international leader in whistleblower protection and advocacy.

A non-partisan, 501(c)(3) non-profit organization, Government Accountability Project actively promotes government and corporate accountability by providing legal representation to whistleblowers and ensuring their disclosures make a difference. Our longstanding work with more than 8,000 whistleblowers has involved working for decades in the areas of public health, food safety, national security, human rights, immigration, energy and the environment, finance and banking, and international institutions, as well as expanding whistleblower protections domestically and internationally.
 

Government Accountability Project offers pro bono legal and strategic advice and support to employees considering reporting, or who have already reported, misconduct. We also offer advice to public interest organizations and journalists, as well to their whistleblower sources.