What is a “whistleblower"?
In broad terms, a whistleblower is an individual who discloses evidence of wrongdoing, regardless of whether subsequent retaliation occurs.
The legal definition in civil service law [1] for a whistleblower is an employee, applicant or former employee 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.
Contrary to popular belief, an individual who discloses suspected wrongdoing does not need to experience retaliation to meet the legal definition of a whistleblower. Moreover, some individuals may better identify with the term “truth-teller” or “watchdog” for instance. Most whistleblowers simply perceive themselves as committed employees performing their jobs. Executive Order 12731 , issued in 1990, requires all federal employees to disclose waste, fraud, abuse, and corruption to appropriate authorities.
What services does the Office of the Whistleblower Ombuds offer?
The Office of the Whistleblower Ombuds in an independent and nonpartisan support office established to advise House offices on best practices for working with whistleblowers from the public and private sectors. In accordance with the House Rules , the Office has two main responsibilities:
Promulgate best practices for whistleblower intake for offices of the House.
Provide training for offices of the House on whistleblower intake, including establishing an effective reporting system for whistleblowers, maintaining whistleblower confidentiality, advising staff of relevant laws and policies, and protecting information provided by whistleblowers.
The Office is available to answer specific questions and provide guidance around whistleblower-related matters at 202.226.6638. The Office treats all inquiries confidentially.
Is the Office of the Whistleblower Ombuds authorized to receive whistleblower disclosures?
No, the Office of the Whistleblower Ombuds is not authorized to receive whistleblower disclosures of suspected wrongdoing or retaliation. Rather, the Office exists to advise House offices on best practices for working with whistleblowers. However, the Office has developed and compiled publicly available Whistleblower Resources . Before risking retaliation or liability, anyone considering blowing the whistle should consult an attorney experienced in representing whistleblowers. Also review Best Practices for Working with Congress and Whistleblower Survival Tips . In addition, the Council of the Inspectors General on Integrity and Efficiency (CIGIE) and the U.S. Office Special Counsel (OSC) have developed an interactive online tool to ensure that whistleblowers are informed of the avenues available to them to report wrongdoing, and also the correct venue to file a complaint to address any retaliation that may occur after reporting wrongdoing.
What options are available for individuals who want to report misconduct related to the coronavirus response?
The coronavirus presents significant public health and safety threats, as well as the potential for misuse of taxpayer dollars designated for the coronavirus response. The options for engaging in protected whistleblowing will vary depending on the nature of the disclosure and the whistleblower's employer, among other factors.
Whistleblowers who wish to make a coronavirus-related disclosure can use the following interactive online tool to determine the avenues available to report wrongdoing, as well as the correct venue to file a complaint to address any retaliation that may occur after reporting wrongdoing. They can also use GAO's FraudNet , CIGIE's Pandemic Response Accountability Committee hotline, or contact the bipartisan Select Subcommittee on the Coronavirus Crisis . In addition, the U.S. Office of Special Counsel - the independent executive branch agency that provides a secure channel for most federal whistleblower disclosures and retaliation claims - has developed an internal Coronavirus Task Force to help ensure the swift assessment of COVID-related disclosures and rapid referral for investigation in appropriate cases.
Finally, the Special Inspector General for Pandemic Recovery (SIGPR) accepts disclosures regarding “fraud, waste, abuse and mismanagement related to the Coronavirus Aid, Relief, and Economic Security (CARES) Act funding, programs, and personnel.” SIGPR receives disclosures online and through its hotline: 202.927.7899.
Whistleblowers take significant professional and often personal risks when they come forward with coronavirus-related matters or other suspected wrongdoing. As a result, it is important for congressional staff to handle their information appropriately and to protect their identity. The Government Accountability Office has developed helpful
guidance for congressional communications with federal whistleblowers. House offices can contact the Office of the Whistleblower Ombuds for guidance surrounding coronavirus-related whistleblowing matters at 202.226.6638.
Do all employees have whistleblower protections?
No, there are significant gaps in whistleblower laws that leave certain sectors of the labor force uncovered. Notably, legislative branch employees have limited anti-retaliation protections under the Congressional Accountability Act (CAA) and clause 20 of rule XXIII (Code of Official Conduct). In addition, most political appointees and judicial branch employees do not have whistleblower protections. Moreover, for those employees afforded whistleblower protections, the strength of their rights varies significantly.
There exists a patchwork of federal, state and local laws, as well as First Amendment rights, that comprise the legal whistleblower landscape. Each law has different remedies, procedural steps, and paths for enforcement.
There are several factors used to evaluate a whistleblower's options for reporting wrongdoing and retaliation, including:
What is the nature of the information being disclosed?
Is the information being disclosed classified?
Who is making the disclosure?
To whom was the disclosure made?
How and where was the disclosure made?
What is the nature of the reprisal action?
When did the employee become aware of reprisal?
Anyone considering blowing the whistle should first consult an attorney experienced in representing whistleblowers. Individuals can also use the following interactive online tool to determine the avenues available to report wrongdoing, as well as the correct venue to file a complaint to address any retaliation that may occur after reporting wrongdoing.
What protections and resources are available to legislative branch whistleblowers?
The Office of the Whistleblower Ombuds has developed a Legislative Branch Whistleblowing Fact Sheet for a more detailed overview of available options.
Legislative branch employees have limited anti-retaliation protections under the Congressional Accountability Act (CAA). Additional information on those rights can be found at the Office of Congressional Workplace Rights . For matters that fall within the jurisdiction of the CAA, legislative branch employees can arrange a confidential meeting with the Office of Congressional Workplace Rights. House employees can also seek confidential advice and legal representation from the Office of Employee Advocacy , and House managers can seek confidential advice and legal representation from the Office of House Employment Counsel .
Further, at the beginning of the 117th Congress, the House adopted new rules to protect Congressional whistleblowers. Specially, clause 20 of rule XXIII (the Code of Official Conduct) prohibits a Member, Delegate, Resident, Commissioner, officer, or employee of the House from taking any actions to prevent an individual from, or to retaliate against an individual for, providing truthful information to the Committee on Ethics, the Office of Congressional Ethics, the Office of Congressional Workplace Rights, or any law enforcement official, provided that the disclosure of such information is not otherwise prohibited by law or House rules.
House employees who want to report suspected misconduct can also arrange a confidential consultation and submit an allegation with the House Committee on Ethics , or submit an allegation with the Office of Congressional Ethics or the House Office of Inspector General .
Are whistleblower communications with Congress legally protected?
Congress plays a critical role in both learning from, and protecting, whistleblowers. Further, Congress’ constitutionally mandated oversight work very often relies on vital disclosures from employees within the public and private sectors. There are several primary statues that protect whistleblower communications with Congress, including:
Lloyd-La Follette Act of 1912 w.law.cornell.edu/uscode/text/5/7211"> (5 U.S.C. § 7211) : Establishes the right of federal employees to communicate with CongressFirst Amendment of the U.S. Constitution : Establishes the right to free speech for all citizens, including communications with Congress, but there are limitations on enforcement of anti-retaliation rightsWhistleblower Protection Act , as amended by the Whistleblower Protection Enhancement Act (5 U.S.C. § 2302(b)(8)): Provides whistleblower protections for most federal employees[2] who make authorized disclosures, including disclosures to Congress“Anti-Gag” Protections (5 U.S.C. § 2302(b)(13), and Public Law 116-93, Sec. 742 & 743): Requires every U.S. Government and contractor nondisclosure policy, form, or agreement to notify employees of their right to whistleblower protections and congressional communicationsSalary Cutoff for Interfering with Congressional Communications : (Public Law 116-93, Sec. 713): Prohibits funds from being used to pay the salary of a federal officer or employee who interferes with or retaliates against a federal employee for communicating with CongressProtections for Witnesses in Federal Investigations U.S.C. § 1505: Prohibits obstruction of proceedings before Congress, agencies and departments. Penalty is a fine and imprisonment up to 5 years
18 U.S.C. § 1513(e): Prohibits retaliation against a witness, victim, or informant for law enforcement. Penalty is a fine or imprisonment up to 10 years
18 U.S.C. § 1512: Prohibits tampering with a witness, victim, or an informant. Penalty is a fine or imprisonment up to 20 years
There are many additional statutes, including for the private sector, that protect whistleblower communications with Congress. House offices can contact the Office of the Whistleblower Ombuds for guidance at 202.226.6638.
Are whistleblowers allowed to disclose classified information to Congress?
Whistleblower disclosures that involve classified information are permitted only if made through appropriate, lawful channels. Providing classified documents to unauthorized recipients could result in criminal prosecution. Intelligence Community (IC) employees and contractors working in any of the 17 elements of the IC must follow the processes established within the Intelligence Community Whistleblower Protection Act (ICWPA) for making a protected disclosure to the congressional intelligence committees.
Specifically, under the ICWPA an IC employee or contractor who intends to report to Congress a complaint or information with respect to an "urgent concern" will report to the Inspector General of their IC element. Within 14 days of receiving the complaint, the IG must report all complaints that the IG deems credible to the head of the IC element. Within seven days of receipt, the head of the IC element is required to report the complaint to the congressional intelligence committees. However, if the head of the IC element determines that the complaint would create a conflict of interest, then he/she would return the complaint to the IG to forward to the Director of National Intelligence (or to the Secretary of Defense for the DOD intelligence agencies) to forward to the congressional intelligence committees. Within three days, the IG is required to notify the whistleblower of any action involving the complaint.
If the event that the IG does not report the complaint, does not find it credible, or reports it inaccurately, the whistleblower has the right to submit the complaint directly to the congressional intelligence committees. However, the whistleblower must first inform the head of the IC element, through the IG, of the intent to contact the congressional intelligence committees directly. Further, the whistleblower must follow the head of the IC element's guidance on security and protection of classified information.
The Office of the Director of National Intelligence has developed a website to provide guidance on lawful whistleblowing in the IC . Further, in September 2019 the Congressional Research Service updated its report on Intelligence Community Whistleblower Protections to provide information on the existing legal landscape for IC whistleblowing.
Federal employees or applicants outside of IC elements are covered under the Whistleblower Protection Act when they make a disclosure to Congress (including a committee of Congress) of classified information, if the information was classified by the heads of non-IC elements and if the disclosure does not reveal sources and methods. Related statutory text can be found under Section 5721 of the National Defense Authorization Act for FY2020 .
Anyone considering making a classified whistleblower disclosure should first consult an attorney experienced in representing national security whistleblowers.
Are there legal protections to ensure a whistleblower's confidentiality?
The Whistleblower Protection Act and the the Inspector General Act of 1978 require the confidentiality of whistleblowers. Under the Whistleblower Protection Act (5 U.S.C.§1213(h)) , the Office of Special Counsel may not disclose the identity of any individual who makes a protected disclosure without the individual's consent, unless it is "necessary because of an imminent danger to public health of safety or imminent violation of any criminal law." The Inspector General Act ">(Section 7) requires the Inspectors General and their staff maintain whistleblower confidentiality “unless otherwise unavoidable” or unless the whistleblower provides consent to have their identity shared. In addition, under the Privacy Act of 1974 (5 U.S.C.§552a) it is illegal for the government to publicly disclose personal information about an individual without their consent.
Further, at the beginning of the 117th Congress, the House adopted new rules to protect whistleblower confidentiality. Specially, clause 21 of rule XXIII (the Code of Official Conduct) prohibits a Member, Delegate, Resident Commissioner, office, or employees of the House from knowingly and willfully publicly disclosing the identity or personally identifiable information of an individual who is covered under federal whistleblower laws. There are some exemptions, such as when 1) the individual has provided express written consent to such disclosure; 2) the individual has already voluntarily and publicly disclosed their identity; or 3) the disclosure is by the chair of a committee after an affirmative vote by two-thirds of the committee members that such disclosure is in the public interest. Disclosures are subject to appropriate safeguards, including timely advance notice to the individual and a written explanation for the reasons for the disclosure. The Office stands ready to assist House offices with compliance, training, and consultation concerning the whistleblower confidentiality requirements under the Code of Official Conduct.
Despite legal protections, a whistleblower's identity could still be revealed by their employer, colleagues or other individuals that are aware of their whistleblowing. Revealing a whistleblower's identify can have a significant chilling effect that may deter future employees from reporting waste, fraud, abuse or other misconduct.
Is a whistleblower disclosure that is based on secondhand information credible and protected?
It is not uncommon for a whistleblower to make a disclosure based on secondhand information. There are numerous factors that can result in a whistleblower using secondhand information. For instance, secondhand information is often used to corroborate the “pioneer” whistleblower’s allegations, and/or the whistleblower may serve as a conduit for additional whistleblowers. A 2019 academic study analyzed more than two million whistleblower reports submitted to publicly-traded U.S. firms and found that secondhand reports are 47.7% more likely than firsthand reports to be substantiated by management. In September 2019, in response to widespread public confusion, the Office of the Inspector General of the Intelligence Community clarified that an individual does not need to possess firsthand information in order to make a protected disclosure.
