Today in 1989: The Whistleblower Protection Act is signed into law

April 10, 2015

Today in Legal HistoryAs we noted in a post at the end of last month, whistleblowers – an individual who exposes misconduct occurring within an organization – are seeing more protections today than ever before.  This is in large part because of the “whistleblower bounty” provision of the 2010 Dodd-Frank Act, which allows for monetary awards for those who provide original, useful information about a securities fraud that results in a successful Security and Exchange Commission (SEC) enforcement action with at least $1 million in sanctions.

However, the current protective atmosphere enjoyed by whistleblowers is actually a more recent phenomenon.  The modern era of whistleblower defense began with the Civil Service Reform Act of 1978 (CSRA), which included provisions to protect federal employees who disclose information which the employees reasonably believe evidences “a violation of law, rule, or regulation, a gross waste of funds, an abuse of authority or a specific and substantial danger to public health or safety.”

The CSRA was largely regarded as being ineffective at protecting federal whistleblowers, with Congress finding that the CSRA-created Office of the Special Counsel (OSC) “had not brought a single corrective action case since 1979…on behalf of a whistleblower,” which is what the OSC was created in part to do.

Thus, Congress passed the Whistleblower Protection Act of 1989 (WPA) on March 21, 1989, and it was signed into law by President George H.W. Bush on April 10, 1989, 26 years ago today.

The primary federal statute behind whistleblower protections today, the WPA gave federal whistleblowers the right to pursue their own cases before the Merit Systems Protection Board (MSPB), which was originally created by the CSRA to review claims of misconduct brought forth by whistleblowers.

Unfortunately, the WPA was only marginally more effective at shielding federal whistleblowers from retaliation, with the MSPB denying 98% of whistleblower appeals coming before it.

Nevertheless, the WPA is an important milestone in whistleblower legal history.  First, it was the first federal law for which its sole purpose – as could be gleaned from its name – was to protect whistleblowers.  By contrast, the CSRA had another goal often at odds with its whistleblower protections: increasing the power of management to deal with poor performance in federal employees.

On a larger scale, the WPA represents an attitude shift toward emphasizing the importance of defending whistleblowers against reprisal.  Since its enactment 26 years ago, whistleblower protections have become common in a number of laws, such as 2002’s Sarbanes-Oxley Act and 2010’s Affordable Care Act.  And of course, the WPA paved the way not only for future protections for those reporting organizational misconduct, but also for actual rewards for those individuals providing such information, as found in the Dodd-Frank whistleblower bounty provision.

Furthermore, the WPA itself was significantly strengthened by 2012’s Whistleblower Protection Enhancement Act, reflecting this growing position on the importance of safeguarding whistleblowers.

Thus, the original WPA was, in many ways, marked the turning of the tide toward this attitude shift – a shift that seems to continue turning in favor of whistleblowers even today.