Following are excerpts from an MSPB report comparing federal whistleblowing today versus a similar survey-based report in 1992.
For more than three decades, the law has recognized the importance of encouraging Federal employees to come forward with reports of any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. This report explores the extent to which Federal employees perceive wrongdoing, the extent to which they report the wrongdoing they see, and what factors influence their decisions to remain silent or to blow the whistle.
Findings and Recommendations
Survey data show that since 1992, the percentage of employees who perceive any wrongdoing has decreased. However, perceptions of retaliation against those who blow the whistle remain a serious concern. In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both. One possible cause for this level of perception may be differences between how the law defines whistleblowing for purposes of protecting individuals from retaliation and how employees define it.
The survey data also indicate that the most important factors for employees when deciding whether to report wrongdoing are not about the personal consequences for the employee. Saving lives is more important to respondents than whether they will experience punishment or a reward, and whether the agency will act on a report of wrongdoing matters more than any fear of an unpleasant consequence for the employee making the report.
This means that agencies have the power to influence employees’ decisions about reporting wrongdoing. We urge agencies to create cultures in which employees will believe that:
Supervisors and managers want to be told about wrongdoing;
Supervisors and managers want their employees to come forward to report any basis for a reasonable suspicion of wrongdoing without requiring absolute proof of wrongdoing;
A report of wrongdoing will result in positive changes; and
An employee will not be shunned or punished for reporting wrongdoing, but instead will be supported or praised.
Survey data also show that agencies are doing more to train employees about whistleblower protection rights. However, given that this training is mandated by law, there are still far too many employees who reported that they did not receive this training. We therefore urge agencies to improve the quality of employee training about how to make a disclosure, an employee’s right to not experience retaliation or threats of retaliation, and how employees can exercise that right.
Our data show that perceptions of retaliation among those identified as the source of a report of wrongdoing have not declined since 1992. As noted in our recent report, Whistleblower Protections for Federal Employees, the laws to protect whistleblowers are complex and can create challenging situations for employees. It is possible that amending the law regarding the circumstances under which an individual is eligible for protection as a whistleblower may be beneficial. We encourage Congress to continue to examine and debate how best to achieve the delicate balance between effective management control of the workplace and the need to ensure that employees can bring wrongdoing to light without fear of threatened or actual retaliation.
Conclusion
We have seen some progress in the Federal Government with respect to effectively utilizing Federal employees to reduce or prevent fraud, waste, and abuse. Since 1992, the percentage of employees who perceive any wrongdoing has decreased, and for those who perceive wrongdoing, the frequency with which they observe the wrongdoing has also decreased. Additionally, in comparison to 1992, respondents in 2010 were slightly more likely to report the wrongdoing and less likely to think they have been identified as the source of the report.
However, among those individuals who indicated that they reported the wrongdoing and were identified as the source of the report, the potential for retaliation remains a serious problem, with approximately one-third of such respondents in both 1992 and 2010 perceiving either threats or acts of reprisal, or both.
Furthermore, when wrongdoing occurs, it is expensive, perhaps more so now than in 1992. So, while progress has been made to reduce wrongdoing, it is more important than ever that employees report wrongdoing when it does occur.
In 1978, Congress enacted a law to protect whistleblowers, and then amended that law in 1989 and 1994 to strengthen those protections. However, the percentage of individuals who perceived that they were retaliated against after being identified as whistleblowers has not changed substantially since 1992. The law contains what some perceive as substantial gaps in protection. In recent years, Congress has considered enacting further amendments to provide employees with better protection from retaliation. However, even if amended, laws to protect employees from retaliation can go only so far in encouraging reports of wrongdoing because a fear of retaliation for whistleblowing activity is only one of many factors that can influence an employee’s decision to report wrongdoing.
Ultimately, the best way to ensure that employees will report wrongdoing is a combination of: (1) creating agency cultures that encourage whistleblowing by making it clear that management wants to stop wrongdoing, and (2) providing legal protections for whistleblowers who experience retaliation or threats of retaliation.
Whistleblower protection laws are necessary to encourage employees to report wrongdoing. While notable progress has been made in educating employees about their rights under the law with respect to protection from reprisal, training in this area can and should be improved. However, in the end, the redress for whistleblowing retaliation will not affect disclosures of wrongdoing as much as a culture in which employees believe that their whistleblowing will make a real difference. From the President and the Congress, to the agency leaders they nominate and confirm, and down through the ranks of the career civil service, we encourage all of those in a position of influence to set the tone that reporting wrongdoing is a public service and a public duty and that retaliation against whistleblowers will not be tolerated. The law is important, but the law cannot do it alone.
