Does a Whistleblower Have Protections Against Retaliation?

October 31, 2019 – In recent developments regarding the whistleblower complaint by an anonymous CIA officer against actions by President Donald Trump, a common concern has arisen around whistleblower protections. Is the whistleblower in this case in danger of retaliation? What protections does the whistleblower have related to privacy and anonymity? How could the process of the investigation expose the whistleblower to retaliation? How does this case compare to protections for whistleblowers under Minnesota law?

Fortunately, federal and state laws have many safeguards in place to ensure the protection and privacy of a whistleblower. However, under the specific whistleblower statute and facts of this case, many of the protections may not necessarily extend to complaints against the President of the United States, who is the head of the executive branch and federal agencies involved in this case.

What is a whistleblower?

There are several federal laws that protect whistleblowers. Depending on the statute, the law may protect either government employees or government and private employees, and are often designed to target fraud, health, safety, and illegal activity against the government or the public. For example, under the federal Whistleblower Protection Act, a whistleblower is any government employee who exposes information, including illegal, unethical, incorrect, or criminal activity, within a public or private organization. This Act, which was signed into law in 1989, guarantees freedom of speech and protection against retaliation for the disclosure of information when the claimant believes that an abuse of authority or other violation is a substantial and specific danger to public health or safety. Other federal whistleblower statutes include the False Claims Act, the Occupational Health and Safety Act (“OSHA”), and the Sarbanes-Oxley Act.

In Minnesota, under the Minnesota Whistleblower Act, a whistleblower is any employee who makes a good faith report of a violation or suspected violation by their employer of any state or federal law, statute, rule or regulation. Further, this law protects an employee who refuses the employer’s order to perform an act that the employee has an objective basis in fact to believe violates any state or federal law, rule or regulation, as well as protects an employee who is requested to participate in an investigation, hearing or inquiry. The Act also has specific whistleblower protections for employees of health care providers and facilities.

There is an additional federal law known as the Intelligence Community Whistleblower Protection Act, which was written specifically for government workers to report instances of abuse or wrongdoing involving the intelligence community. Unlike general whistleblower complaints, intelligence community whistleblower complaints trigger an investigation by the Inspector General of the intelligence community and an immediate report to Congress if deemed credible.

The whistleblower’s complaint in this case was made under the Intelligence Community Whistleblower Protection Act. The complaint asserted abuse of power, with a tip that the President pressured the head of a foreign government to investigate his political rival while withholding emergency funds already allocated by Congress. While the investigation found the complaint credible, the complaint was only released to Congress after pressure to do so. Despite releasing the report and transcript of the call, the White House has sought to impede further investigation by attacking the motivations and intentions of the whistleblower, even using words like “spy” and “treason.”

Will the whistleblower in this case remain anonymous?

Unlike the Minnesota statute, the Intelligence Community Whistleblower Protection Act bars the Inspector General from disclosing the identity of the whistleblower without their consent. However, there is an exception if they deem the disclosure is an unavoidable consequence during the investigation. Here, the whistleblower could be outed if the Attorney General decides to treat the case as a criminal matter.

Are there remedies for retaliation?

Most whistleblower laws—including the Minnesota Whistleblower Act—protect an employee from retaliation by their employer. This means an employee is protected against retaliatory conduct like termination, intimidation and harassment. Under the Minnesota statute and other federal statutes, an employee may sue to recover back pay, compensatory damages, attorney’s fees, as well as seek reinstatement or any other appropriate relief.

The Intelligence Community Whistleblower Protection law is different in that it does not allow the employee to sue in court and does not have any remedy that would allow for a court to reinstate a whistleblower who was fired in retaliation.

The whistleblower complaint at issue here is unique because it involves the President directly. Whistleblower protections that would exist in a typical whistleblower report do not necessarily immunize the whistleblower in this case. Here, the President could attempt to fire the whistleblower for purported “national security” reasons, and the law will not protect the whistleblower from public harassment and exposure on Twitter or in the media. At this point, the identity of the whistleblower is still confidential, but the legal recourse will be limited if there is retaliation.

Are there whistleblower protections in Minnesota?

Yes, the Minnesota Whistleblower Protection Act protects employees from retaliation against their employer if they report or refuse to engage in illegal conduct. The law applies to all employees and all employers with one or more employees. An employee is protected against termination, discrimination or any adverse action when an employee reports a violation or suspected violation, requests to participate in an investigation or hearing, or refuses to perform an act that the employee believes is in violation of federal or state law or other regulations. Similar protection is provided under the Minnesota Occupational Safety and Health Act which prohibits an employer from retaliating against a whistleblower for reporting unsafe or unhealthy working environments.

The attorneys of Baillon Thome Jozwiak & Wanta LLP have litigated and tried numerous cases under Minnesota whistleblower laws. For more information about whistleblower protections and your rights, contact our attorneys. We are experienced in all areas of employment law and dedicated to preventing retaliation for reporting illegal activity or misconduct by public and private organizations.

 

Sources and additional reading:

New York Times, The Daily, “How the Whistleblower Complaint Almost Didn’t Happen,” September 30, 2019.

Forbes, “President Trump Just Showed Us What’s Wrong With a Federal Whistleblowing Law,” by Tom Spiggle, October 1, 2019.

The Washington Post, “Could Trump fire the whistleblower?,” by Irvin McCullough, October 16, 2019.

The Washington Post, “We represent the whistleblower. Their identity is no longer relevant.”, by Andrew P. Bakaj and Mark S. Zaid, October 25, 2019.