The cases of WikiLeaks-enabler Bradley Manning and National Security Agency whistle-blower Thomas Drake have shown the legal risks of sharing sensitive information.
But the author of a new book says whistle-blowing can be important — and safe.
Attorney Stephen Martin Kohn, executive director of the National Whistleblower Center, wrote a 300-page guide about protecting yourself from employer retaliation called “The Whistleblower’s Handbook.”
He talked to Roll Call about the challenges and benefits of the practice.
You divided your book into 21 rules that whistle-blowers should follow if they hope to win their cases. What is Rule No. 1?
The first rule is to understand the maze of legal work: Try to understand your rights before blowing the whistle — it often determines whether you’ll win or lose your case. There are more than 50 separate federal whistle-blower laws, and every state has its own, too. The trick is to find the law that protects you the most and use it to maximize your rights.
Look for damages: One law may only give whistle-blowers job reinstatement; another might award punitive damages. Look at timing: One law may require witnesses to file a complaint within 30 days of the reported incident; others allow two years.
Find the best law, and do this at the beginning of your case to avoid mistakes that may cause a judge to chuck your complaint.
What kinds of mistakes make a whistle-blower’s case moot?
Who you raise your concern to and how you articulate your concern are critical factors that can impact your ability to win the case and keep your job.
Some employees go to their internal complaints department at their employer, but guess what — under some laws, that’s not protected. Those employees might lose their cases for coming forward internally. In these instances, they should have gone to the government first.
Also, recording supervisors’ reactions to whistle-blowing can often turn out to be the best evidence for winning a case. Whistle-blowers tell the boss what the problem is, and the supervisor gets angry and demands that he or she destroy any evidence. But now the whistle-blower has documented evidence that will swing the case. Taping, in that circumstance, can be invaluable.
On the other hand — and this is another of my 21 rules — people must be careful with self-help tactics such as taping. It might be legal to tape a conversation without people knowing it in one state, but in another it’s outlawed. And you can get fired legitimately and lose your case.
All these laws are confusing. How can potential whistle-blowers find out exactly what’s legal and what’s not in their areas?
That’s why I wrote the handbook. Rule four in my book summarizes the best federal laws; rule five summarizes various state protection laws. And at the end of the book, I inserted a checklist of every single whistle-blower law, its jurisdiction and what it covers in the major cases.
What’s another rule that whistle-blowers should remember?
Rule two: Follow the money.
Most whistle-blower cases concern money. Regarding health issues, companies dump toxins in the river not because they’re evil but because it saves money. Government contractors cheat to get lucrative contracts or cut corners on performance to save.
If you can track and prove financial loss in your case, you may qualify for a reward. Since 1987, for instance, under the False Claims Act alone, employees have been given $2.7 billion in rewards for uncovering fraudsters and wasted money.
Is it more dangerous to blow the whistle on the government than a private company?
It is. Federal employees have the least protection from reprisals. Congress has modernized protection laws for private-sector whistle-blowers but has not modernized the laws that would allow federal staffers to blow the whistle on their own patronage.
In the private sector, most laws permit employees who have been fired for blowing the whistle to take their cases to independent judges. But in the federal sector, most whistle-blowers don’t get an independent judge but must appear instead before a board that is appointed by the sitting president. It’s political by nature.
Also, federal employees must prove “gross” waste of funds and “gross” mismanagement to win their cases.
How is “gross” defined?
It’s defined in a way that almost no federal whistle-blower has prevailed since that amendment. The better option is for federal employees to hang their cases on a violation of law. If they can prove the government violated a specific law, they’ll be protected.
Did the Bradley Manning scandal encourage you to write this book?
No, but I do have a few thoughts on his case: I have always been skeptical of WikiLeaks from a whistle-blower’s perspective. Like I said, one of the biggest issues is who you blow to.
Armed service members are permitted under a whistle-blower law to disclose information to Congress. Had Manning taken his information to Congress, there would have been a different outcome.
Are whistle-blowers seen in a negative light?
In the old days, yes, but recent polling has shown a change in attitude. Whistle-blowers score extremely high in public approval ratings, especially with independents who don’t necessarily think along partisan lines.
Why do you think whistle-blowing is so important?
Studies show that whistle-blowers are the No. 1 source of rooting out fraud. Fifty-eight percent of fraud cases are uncovered by employees while law enforcement officials uproot only 4 percent.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.