Best Practice Whistleblower Law Standards

In defining what constitutes a protected disclosure, best practice standards reflect a wide range of threats to the public interest. Standards also specify that certain pre-conditions do not disqualify whistleblowers from protection, such as their motive for making a disclosure.
 

• Explicitly protects disclosures that the whistleblower reasonably believes evidence any violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.
• Protects disclosures that were made as part of an employee’s normal work duties—so-called “duty speech”—without heightened scrutiny.
• Protects disclosures regardless of preconditions such as the whistleblower’s motive; whether the information was previously disclosed; the amount of time that has passed since the alleged wrongdoing; and whether the disclosure was made orally or in writing, among other factors.
• Protects disclosures that the whistleblower makes, is about to make, causes to be made, assists in making, or is perceived as making (even if that perception is incorrect).

In addition to protecting disclosures of alleged misconduct, best practice standards also explicitly protect certain conduct that often goes hand in hand with making a protected disclosure such as assisting in a related investigation.
 

• Protects the exercise of any appeal, complaint, or grievance right.
• Protects the act of assisting someone who is exercising their own whistleblower rights.
• Protects testifying.
• Protects assisting in a lawful investigation.
• Protects an individual for refusing to follow an order that would require them to violate a law, rule, or regulation.

When setting the boundaries of who qualifies as a “whistleblower,” best practice standards do not limit protections to current employees of the entity under scrutiny. Rather, “whistleblower” is defined broadly to encompass all who are poised to expose evidence of wrongdoing.
 

• Extends protections to anyone who comes forward to make a disclosure under the law’s scope including:
  • Current employees, former employees, and applicants for employment.
  • All who work on behalf of an entity’s mission, whether formally employed or not (e.g., volunteers).
  • Any individual or entity that is impacted by the entity’s actions including shareholders and organizations.
• Prohibits anyone with authority, and their agents, from retaliating against the whistleblower.

Best practice standards protect public disclosures when not otherwise restricted by law or executive order. Where disclosures cannot be public facing due to express legal limitations (e.g., classified disclosures), protected audiences are clearly identified.
 

• Protects public disclosures where the information is not classified and not specifically prohibited by statute.
• Protects internal disclosures made within the employee’s chain of command, to those with authority, or to another employee.
• Protects disclosures to clearly identified independent audiences such as Congress, inspectors general, the Office of Special Counsel, or another independent investigator.

Best practice standards provide a process for the timely, independent, and transparent review of the whistleblower's disclosure into the alleged misconduct.
 

• Ensures that any investigation into the alleged misconduct is overseen by an independent fact finder.
• Provides deadlines for completion of the misconduct investigation.
• Provides whistleblowers with a meaningful opportunity to review and comment on investigative reports.
• Requires public reporting of investigative findings, with measures taken to maintain whistleblower confidentiality.
• Requires a preliminary review, regardless of how long ago the alleged misconduct took place.

Best practice standards explicitly allow whistleblowers to make confidential or anonymous disclosures regarding alleged misconduct and confidential disclosures regarding unlawful retaliation.
 

• Prohibits the knowing release of a whistleblower's identity or personally identifying information without prior written consent by the whistleblower unless disclosure is required by law.
• Provides timely, advance written notice if the whistleblower's identity will be disclosed.

Best practice standards frame the scope of prohibited retaliation broadly. This is both to protect whistleblowers who come forward and to deter creative means of harassment that extend beyond the workplace, such as retaliatory civil and criminal legal action.
 

• Prohibits unfavorable actions taken or threatened, as well as favorable actions not taken, because of protected whistleblowing or a perception of protected whistleblowing, even if the perception is mistaken.
• Prohibits discharge, demotion, suspension, harassment, or any other manner of discrimination, in the terms and conditions of employment.
• Extends immunity to criminal or civil liability with respect to protected disclosures.
• Prohibits retaliatory investigations.
• Prohibits access to medical records stemming from prohibited retaliation or retaliatory referral for psychiatric or medical evaluation.
• Requires accountability processes, including access to due process, for individuals found to have engaged in unlawful retaliation.

Best practice standards include a clear and timely means for whistleblowers to seek enforcement of their rights, employing specific burden of proof standards.
 

• Provides at least a three-year statute of limitations in which to file a claim of unlawful reprisal.
• Applies an objective “reasonable belief” standard for evaluating whether disclosures are protected.
• Requires that the whistleblower demonstrate, by a preponderance of the evidence, that their whistleblowing was a contributing factor in the retaliation they faced. Requires the respondent to demonstrate, by clear and convincing evidence, that they would have taken the same action for reasons independent of the whistleblowing activity.
• Provides for timely due process enforcement of rights including an administrative hearing or remedy with the option of taking the case to federal court before a jury if there is not timely relief.

Best practice standards address the full scope of harm—past, present, and future—to make the whistleblower whole. This includes temporary relief or “stays,” which pause the personnel action a whistleblower is facing.
 

• Provides a clear means for whistleblowers to obtain interim relief or “stays” on the underlying personnel action following a preliminary determination in their favor.
• Provides for an alternative dispute resolution option with an independent adjudicator selected or agreed to by both parties for the timely and affordable resolution of disputes.
• Provides whistleblowers with compensatory damages including back pay.
• Provides for reasonable attorney’s fees and any special damages sustained because of the retaliation such as litigation costs and expert witness fees.
• Provides other personal relief such as the option to transfer physical location for employment.

Best practice standards make explicit that whistleblower protections cannot be waived through nondisclosure agreements or other prior restraints on the right to engage in protected whistleblowing.
 

• Dictates that whistleblower rights cannot be waived in any agreement, policy form, or condition of employment, including in a pre-dispute arbitration agreement.
• Requires that any workplace policy or order restricting employee speech must also contain language making explicit that whistleblowing rights remain unaffected by the policy or order.
• Dictates that covered individuals retain existing rights under federal and state laws, and under collective bargaining agreements.

Best practice standards require that individuals be informed of their rights and responsibilities under the law. Standards require independent evaluation to determine if education requirements are being met.
 

• Makes available no-cost guidance for whistleblowers on their rights, options, and the procedures for making disclosures or reporting retaliation.
• Requires that employers regularly train employees on their rights and remedies, with a separate training for managers on their responsibilities.
• Requires regular assessment of the trainings through an independent evaluator.