Below, please find a thorough list and description of the many bills/legislation that GAP is working with members of Congress on to improve whistleblower rights. Please be advised that several bills are reflective of legislative action from the 111th Congress, and will be updated as they are reintroduced in this Congress.
Whistleblower Protection Enhancement Act
For ten years, GAP and an expanding coalition of 400 organizations and companies, of all ideologies, have been fighting to restore credible whistleblower rights for federal government employees and contractors. Legislation to strengthen the Whistleblower Protection Act was on the brink of passage last Congress, until one Senator placed a “secret hold” on the legislation, hours before adjournment. GAP is working closely with the committees of jurisdiction to reintroduce the Whistleblower Protection Enhancement Act without delay.
GAP has provided expert testimony, and proposed and coached whistleblower witnesses, to help build a record for the Whistleblower Protection Enhancement Act (WPEA). Intensive dialogue between the Make It Safe Coalition (MISC), which GAP coordinates, the Obama administration, and both Chambers of Congress has paved the way for expeditious passage of the Whistleblower Protection Enhancement Act in the 112th Congress.
This reform leaves federal whistleblower rights stronger that at any time in history, lapping those created by the Whistleblower Protection Act of 1989. The WPEA would:
- legislatively cancels all the hostile administrative and Federal Circuit court rulings of the last 17 years that account for the 3-210 track record against whistleblowers;
- expands the scope of rights (i.e., scientific freedom and anti-gag) as well as those covered by them (i.e., 40,000 TSA baggage screeners);
- breaks through for structural due process reforms we’ve been seeking since the 1980’s to enforce those rights, with five year experiments for jury trials of major disciplinary actions and all circuits review); and
- breaks ground for a beach head of more modest national security reforms (WPA free speech rights for internal agency disclosures by Intelligence Community employees; classified whistleblowing disclosure rights for all civil service employees to non-intel committees in Congress; expanded security clearance rights for all civil service employees, including intra-agency due process standards, appeal of agency rulings to a new national security board for clearances, and restored MSPB authority over actions related to clearances; and a requirement for the administration to issue due process regulations for enforcement of new IC rights but customized for intelligence factors.
As with any significant reform that must survive a political gauntlet, there have been painful compromises and areas where needed reforms were put off (i.e., making permanent the stimulus law’s anti-retaliation rights for contractor whistleblowers). Overall, however, the legislation is remarkably intact for a reform that has survived a 12 year political gauntlet, including negotiations to lift five secret holds.
The bill’s fine print has a few disappointments (i.e., jury trial burdens of proof; failure to protect disclosures of trivial illegality, and expanded MSPB summary judgment authority). But like the intricate effort to overturn prior hostile legal interpretations, most all of the fine print sweeps out current legal land mines, (i.e., lack of compensatory damages, restrictions on presenting evidence of retaliation; lack of due process rights for refusing to violate the law, barriers to the Office of Special Counsel filing supportive court briefs; barriers to OSC disciplining those who retaliate).
A full memo of enhanced whistleblower protections included in the WPEA that was passed by the Senate last Congress can be viewed here.
FAA Reauthorization Act of 2000 (Air Safety Whistleblower Office) Passed House and Senate (S.1451, H.R. 915)
As part of larger legislation, the House of Representatives approved a model agency whistleblower office, with a disclosure system equivalent to the OSC unit in the Whistleblower Protection Act, at the FAA. Similar rights are in the recently passed Senate bill. However, GAP will continue to work with the Senate to extend the House model to the final bill.
Protecting America’s Workers Act of 2009 (H.R. 2067)
This law will modernize with composite “best practices” the Occupational Safety and Health Act – an extremely weak law that governs more cases than all other whistleblower statutes combined. The Act has been introduced in the House, and GAP will continue to work with the House Education and Labor Committee to include a strong and thorough whistleblower protections. This legislation has not been introduced in the Senate.
Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 (H.R. 5851)
This bill passed in the House late July by an overwhelming bi partisan majority. If signed into law, will be a major victory for oil and gas workers. GAP worked closely with Chairman George Miller of the House Education and Labor Committee to include robust whistleblower protections in this bill. Specifically, the legislation would
- Prohibit an employer from discharging or otherwise discriminating against an employee who reports to the employer, or a federal or state government official that he or she reasonably believes the employer is violating the Outer Continental Shelf Lands Act (OCSLA).
- Protect covered employees who report injuries or unsafe conditions related to the offshore work, refuse to work based on a good faith belief that the offshore work could cause injury or impairment or a spill, or refuse to perform work in a manner that they believe violates the OCSLA. Establish a process for an employee to appeal an employer’s retaliation by filing a complaint with the Secretary of Labor, and allowing a jury trial if the Secretary fails to act in a timely manner.
- Make an aggrieved employee eligible for reinstatement, back pay and compensatory and consequential damages, and, where appropriate, exemplary damages.
- Require employers to post a notice that explains employee rights and remedies under this Act and provide training to the employees of these rights.
We will work closely with the Senate to adopt these measures, once a companion bill is introduced.
Miner Safety and Health Act of 2010 (H.R. 5663)
GAP worked with Chairman George Miller of the House Education and Labor Committee to ensure that best practice whistleblower protections are a cornerstone of the Miner Safety and Health Act of 2010, which has received congressional priority in light of April’s Upper Big Branch mine disaster. This legislation would protect workers who speak out about unsafe conditions in underground mines, and who participate in investigations, such as the current federal investigation into Massey Energy at the Upper Big Branch Mine in West Virginia. In addition, it would expand rights to all other workers by strengthening Occupational Safety and Health Administration (OSHA) whistleblower protections. This bill passed the House Committee on Education and Labor in July, and we are optimistic about eminent floor action. Once a companion bill is introduced in the Senate, we will work closely with relevant committee staff to ensure it adopts equally robust language.
