January 10th, 2018
Effect of Whistleblower Protection Act on Retaliation and Employee Willingness to Report Wrongdoing
Although studies specific to the effect of WPA are limited, one study that collected data on how legislation affects whistleblowing activities over a period in which WPA was enacted offers insight into its effect. In this study, Miceli, Rehg, Near and Ryan (1999) evaluated the role of whistleblower legislation in averting retaliation from employers and promoting whistleblowing. Secondly, the study aimed to assess the variables that predicted retaliation over time. The researchers used data from MSPB surveys of federal employees conducted in 1980, 1983 and 1992. The data collection tool was a questionnaire mailed to randomly selected recipients of comparable agencies during the three times that the survey was conducted. In 1980 the employees were drawn from 15 agencies, in 1983 employees of 14 agencies were used since one of the agencies in the 1980 survey had been dissolved, while in 1992 employees were drawn from 22 agencies. A good response rate, above 63%, was recorded in all the survey periods.
The study’s measures included the incidence of wrongdoing, incidence of whistle blowing (those who reported a wrongdoing they had witnessed), incidence of identified whistle blowing (those who were identified as the source of the report), and incidence of retaliation (threats or actual retaliation). To evaluate the second purpose of the study, the researchers formulated that the dependent variable (comprehensiveness of retaliation) would be affected by independent variables such as seriousness of wrongdoing, lack of support from management, supervisors and coworkers, education level of the whistleblower and professional job status. Other independent variables were job tenure, pay, job performance, gender and race. The study’s results indicated that legislation including WPA had two positive impacts – reducing occurrence of perceived wrongdoing and enhancing the chance of whistle blowing in the event of wrongdoing. However, such legislation was associated with an increase in perceived retaliation hence the increasing incidence of whistleblowers seeking anonymity. These findings were reinforced in a more recent review that discusses the lessons that the MSPB surveys (1980, 1983, and 1992) have had for improving existing whistleblowing processes (Near & Miceli, 2008). On the second aim, the study found that characteristics such as education, job grade, seriousness of wrongdoing and level of support from supervisors, managers and colleagues significantly affect the comprehensiveness of reprisals. Such mediators of retaliation have received support from studies evaluating characteristics that make whistleblowing effective (Miceli & Near, 2002; Near & Miceli, 1996).
In an article published in the Administrative Law Review, Devine (1989) reviewed the advancements in protecting whistleblowers brought about by WPA and its inadequacies. The author first establishes the effects that WPA has on protection of whistleblowers through an historical analysis that highlights the relatively low incidences of whistleblowers winning cases on complaints of reprisals prior to WPA enactment compared to post-WPA enactment. Such an effect of WPA, as argued by the author, resulted from WPA enhancing personal and subject matter jurisdiction that provided a greater chance for the whistleblower’s case being heard. Despite amendments made in 1994 enhancing the effectiveness of WPA, the author argues out that WPA provisions still fail to address employee rights comprehensively thus making the acts’ protective role inferior to those provided by justice pursuit outside the civil service system.
A study by the United States General Accounting Office (GAO) dwelt on some of the factors that impede the achievement of positive results with WPA. The study’s main aim was to evaluate how effective the Office of Special Counsel (OSC) – an agency made independent from MSPB by WPA – was in enhancing the protection of whistleblowers from reprisals (GAO, 1992). The study compared OSC’s decisions on complaints it received from employees before and after the effective date of WPA. Additionally, the study, through a random selection, assessed the disposition of 406 closed complaints in which the OSC had disproved the complaint or where it had ruled that evidence of reprisal was inadequate. Further, such an assessment was conducted on the disposition of 565 selected complaints that the plaintiff took directly to the MSPB or those brought to MSPB as an appeal to OSC’s decisions. WPA provided the option of taking ones reprisal cases directly to MSPB or appealing OSC’s decision to MSPB. Such assessment of OSC and MSPB disposition of the complaints however did not relate to the adequacy of investigations made by either of the bodies. A second aim of the study was to highlight the level of awareness among employees of their rights to protection from reprisals under WPA. To assess such awareness, the study used data from the 19 largest federal departments and agencies at the time of the study (August 1991 to July 1992).
The study’s findings indicated that WPA did not have a significant effect in easing the burden of proof for whistleblowers complaining about reprisals at OSC. This was principally due to the lack of sufficient evidence that linked an employee’s whistleblowing activity with retaliation. Such findings are supported by a study that makes a survey of cases that the MSPB adjudicated from 1991 to 1992 (Shaw, Brainsford, Moore & Okay, 1993). In respect to awareness of their rights under WPA, the GAO’s study found out that employees were rarely aware of the places where they would make a report of reprisals following their whistleblowing activities. Such unawareness was compounded by the lack of a requirement of agencies to educate their employees about procedures for whistleblowing and rights accorded by WPA.
A second study by the GAO on WPA aimed to assess organizational compliance with WPA provisions especially the 1994 amendments that required federal agencies to educate their employees about the protection against reprisals conferred by WPA. The study assessed such compliance in the department of Veterans Affairs (VA) by interviewing and gathering information from officials working at VA headquarters (GAO, 2000). The data collection tool was a questionnaire, which the researchers mailed to 1,197 VA employees; the response rate to the questionnaire was 66 percent. Additionally, the study obtained data on disposition of whistleblowing complaints involving VA from OSC, MSPB and the Occupational Safety and Health Administration (OSHA), a function of the department of labor. The data was collected from two locations – Washington, DC and Dallas, Texas – in the period between March 1999 and January 2000. The study findings indicated that VA duty to inform its employees on WPA provisions was done belatedly, with initiatives aimed to inform employees of their rights being instituted only in 1999, despite the passing of the amendments in 1994.
A challenge for the WPA regards the professions such as lawyers where professional codes place great importance on confidentiality. Highlighting such issues Moliterno (2005) argues out for the duty of federal lawyers to disclose any wrongdoing of their client. The study first evaluates the professional aspects that make it difficult for lawyers to disclose any wrongdoing they encounter in their service top a federal agency. However, noting the provisions provided in such statutes as the whistleblower protection act, the author argues that the duty to disclose such wrongdoing supersedes the confidentiality requirement that the profession imposes. The study does this by highlighting that such professionals are in service of the citizens who the agencies serve rather than the agencies.
A potential risk presented by the enhanced provisions of WPA is employees instituting false claims against employers for instance following disciplinary action to correct poor performance. An article published in the Army Lawyer in 1996 for instance highlights the dilemma that federal managers face in instituting disciplinary action against employees who are underperforming (“New developments”, 1996). The article, using case studies, highlights how, reacting to criticism of its lack of effect, the OSC resulted into aggressive action that could be deemed, at times, to surpass the protections perceived under WPA. For instance, in one of the cases recounted in the article, the special counsel applied WPA provisions to protect a whistleblower who might not have met the “reasonable belief” condition that whistleblowers are supposed to meet to receive protection under WPA (Whitaker, 2007). However, the article notes of various rulings by the United States Court of Appeals for the Federal Circuit, that have offered reprieve to managers against victimization from expansive interpretation of WPA. Such rulings have for instance indicated the need to prove that the protected disclosure was a significant rather than a contributing factor to the perceived reprisal, thus limiting cases where employees may result to whistleblowing to hinder fair disciplinary actions.