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Understanding Your Rights As a Whistleblower

There are literally thousands of laws designed to protect the general public from violations of trust that occur from corrupt organizations, and businesses. Many of the violations that occur are not reported out of fear of retribution from an employer. The creation of whistleblower protection laws was meant to alleviate some of the anxiety of doing the right thing when it comes to reporting instances of fraud, waste, and threats to public safety and off procedure violations.
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Law enforcement agencies and government investigators are only capable of doing so much when it comes to rooting out bad guys who operate on the outskirts of ethical behavior. They rely on the average citizen to also be their eyes and ears in the recesses of the work-a-day world.

Understanding Your Rights Under The Whistleblower Protection Act of 1989

A report released in 2010 by the Merit Systems Protection Board, a limited-power judicial agency that handles whistleblower claims, stated that about one-third of employees who thought they had been identified as a whistleblower believed that they perceived threats of retaliation. The Whistleblower Protection Act (WPA) was created to end some of the judicial oversights that allowed employers to intimidate, or otherwise coerce employees who had filed claims of violations against them.

The arrival of the legislation has not been 100% effective in ending all types of employee retaliation, however. Boss and worker are currently engaged in a game of strategy, with each trying to see what the other can, or cannot get away with when a whistleblower cannot be fired without legal ramifications for the employer. Many whistleblowers report that owners have their own ways of making life tough around the work environment creating a sense of unease to try to influence the individual to quit their position.

Court systems have attempted to counter this type of behavior by business owners, and managers by treating instances of abuse much the same way they handle sexual harassment cases that occur in the workplace. The only real recourse to the employee in a courtroom situation is to validate their claims and win a decision for settlement before quitting. There is compensation, but they are out of a job and are not likely to get a good recommendation from their former boss.

The protective legislation did very little actual protecting of whistleblowers, especially in the government sector. The Federal Court of Appeals also failed by severely restricted its definition to limit the number of people who could be covered by the WPA. These weaknesses in the laws motivated President Obama to sign a bolstering addition to the legislation when he signed into law the Whistleblower Protection Enhancement Act.

The new legislation strengthened the existing ones by including all federal employees, and basically expanded the protection to cover all cases of government wrongdoing. It also cleared up what types of disclosures of wrongdoing were protected by expanding the definition to include “any” disclosure. Some protection for employees was delivered in the legal-speak as well; the employee filing the claim could no longer rely on “reasonable suspicion” as it was previously worded, opening the door to frivolous cases. It was now the responsibility of the person bringing charges to provide undeniable proof of wrongdoing.

How Whistleblowing Helps Government

As has been mentioned, the government and other authorities are limited in their abilities to discover every instance of fraud or malfeasance. With the assistance of ordinary workers, however, a greater contribution can be made towards efforts to end, or, at least, curb, unethical activities in the workplace.

There are hundreds of vendors engaged in government contracts for goods and services. Many of these services, like health care, and Medicaid are programs designed for the public good. Without the watchful eye of concerned citizens who understand the devastating effects of fraud and mismanagement, the amount of damage in lost revenues alone would be even more staggering than they already are.

There is a war going on between unethical organizations and individuals who feel it is ok to take advantage of the government. What they do not seem to understand is that that government gets its funding directly from the sweat of the American worker. It is not often a good idea to make enemies of your employers by stealing from them in any sense of the word.

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Dodd Frank Act Redefines the Whistleblower

President Barack Obama signed the Dodd-Frank Act into law on July 21, 2010. The law was created as a means of bolstering previously passed laws that failed to create enough impact in ending rampant financial abuses. It also further defined whistleblower protection laws and closed loopholes that continued to expose informers to retaliation from employers.

The devastating financial crisis that occurred from 2007-2010 laid bare the vulnerabilities of our financial institutions and led the entire country to realize that there were not enough safeguards against unethical and corrupt investment practices within our financial system. The reforms that resulted from the almost total collapse of the American economy were on such a grand scale that nothing like it had been seen since the Great Depression of the 1930’s.

In its barest description, the Dodd-Frank Act supports financial stability in America by establishing accountability and transparency in the financial sector. It also is geared towards abolishing the idea of any corporation becoming “too big to fail. It is supposed to act as a protection for the average consumer from abusive financial practices that could end up requiring yet another taxpayer-funded bailout of a system proven to be rife with illegal activities.

Critics of the legislation say that it comes too little too late and that it is not strict enough to prevent another financial crisis from occurring. Other opponents claim it is too restrictive of economic agencies, and unfairly limits their ability to function.

When it comes to protecting whistleblowers that have been increasingly instrumental in exposing financial and other types of fraud and abuse. The new legislation has also tried to close a chasm in the definitions as they are represented in former whistleblower laws. It has moved to protect people who come forward with information and report it internally instead of directly to the FCC. In the past, unless the illegal activity was reported to the proper investigatory departments the whistleblower had very little protection against employers seeking to silence them.

The reason this clarification is so important is that the District Courts that hear these case cannot seem to settle on the exact definition of what constitutes a genuine whistleblower. To the laymen, it seems like childish a tug-of-war over semantics that continues to allow lawyers of those being charged to manipulate the system in their clients favor.

The Sarbanes-Oxley Act of 2002 (Sox) was written to provide a safety net for employees who reported instances of abuse internally only. The Dodd-Frank serves to increase that protection. Dodd-Frank provides employees with a much greater level of protection.  It permits a whistleblower that is claiming retaliation to submit a complaint in U.S. District Court, without first exasperating administrative solutions by filing the claim with a federal office, as mandated under SOX.

It also allows for the reimbursement of two times back pay, where SOX only provides for initially lost wages. Furthermore, the Dodd-Frank Act makes provisions for a much longer statute of limitations.  Employees, therefore, have a significant incentive to report under Dodd-Frank rather than under SOX.  The Fifth Circuit’s opinion will encourage employees seeking Dodd-Frank’s greater protections to report potential misconduct directly to the SEC.

While some view these changes as a good thing, others testify that by allowing whistleblowers to bypass internal options for reporting abuses, it opens the door to frivolous lawsuits, as well as removing any possibility that the situation can be handled in-house before it becomes a public issue.

While the lawyers and politicians hash out the final details, the laws already seem to be working as more and more cases of fraud, and ethical infractions are being brought to light. Financial institutions have been operating with impunity for decades, basically writing their own rules, and following their own set of laws at the expense of the American people for too long. Laws like these may be hotly debated for years to come, but to a general public who is increasingly agitated over being taken advantage of it has been a long time coming.

Are You Covered Under the FRSA Whistleblower Protection Act?

The Federal Rail Safety Act was passed to offer whistleblower protection for workers and associates who feel that they have been unfairly treated. Railroad employees are often retaliated against by company leaders for reporting mismanagement, safety violations, discrimination, and a laundry list of other unethical activities that may even post a threat to public safety.

Congress initially enacted the FSRA in 1970 to increase safety measure in the area of operations and reduce railroad accidents. In 1980, they decided to expand the protections guaranteed by the law to negate retaliatory measures being levied against employees by their bosses. This dramatically reduced the number of retribution cases that were reported between 1980 and 2007. There were only 7 cases, and only one was successful.

The FRSA provides specific guidelines for workers who take part in certain “protected activities”. The law demands that railroad companies are not allowed to subject an employee to harassment, wage garnishment, denial of benefits, or promotions based on the fact that they have filed grievances that are protected by the FSRA.

So, what does it mean to be engaged in a “protected activity”? A railroad employee or employee of a railroad contractor, or subcontractor engage in “protected activity” if they are actively, or recently:

  • Reported a work related injury, or reported a co-workers work-related injury, or illness; or have furnished information relating to any railroad injury or incident.
  • Reported violations of any federal laws, mandates, or regulation related to the railroad operational guidelines.
  • Reported instances of fraud, waste, or abuse of finances that were intended for transportation safety or security.
  • Refused to violate or assist in violating any federal law, mandate, or rule relating to railroad operational procedures regarding safety or security.
  • Refused to perform their duties due to hazardous work conditions.
  • Refused to permit the use of unsafe railroad equipment or materials.
  • Testified concerning an FRSA complaint or are cooperating with Homeland Security regarding an ongoing investigation.

These protections are extended to any personnel who report directly to supervisors, managers, or anyone else higher up the chain of command than themselves. Upper management is not permitted to attempt to coerce, or otherwise influence a whistleblower into not filing, or testifying in a case regarding violations. Protected employees are also entitled to remedies under the FRSA including the reimbursing the cost of attorneys, punitive compensation up to $250,000; any back pay with accompanying lost interest value, and reinstatement of all benefits, and position.

The fallout from filing false claims against the railroad can be quite detrimental to the offending party. To ensure that frivolous charges are not filed against railroads out of spite, or over minor disagreements, there are certain criteria that the whistleblower must meet before submitting a report of wrongdoing.

The person filing the complaint must be actively engaged in one, or more of the “protected activity”. They must show proof that the railroad is aware of their activity, and that the activity being reported on is in some way connected to the adverse reaction from the employer. If all four of these points can be provided then the only recourse for the offending railroad is to provide undeniable proof, that they would have behaved no differently had the report not been filed.

For decades, the railroad has operated under the direction of its own rules and regulations, but as it entered the modern age, it became apparent that it required some governmental oversight to maintain the safety of the public, as well as its own workers. Whistleblower legislation has led to improved relations, fewer incidents requiring investigation, and an overall improvement in the everyday operations of the nation’s railway system.

The vigilante eye of the American worker is becoming a valuable tool for fighting fraud and discrimination and other unproductive and unethical activities in the workforce. If you have experienced or witnessed any violation, it is vital that you contact the proper agencies to discover the full array of rights afforded to you as a conscientious whistleblower.

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