Whistle-Blowing in the Federal Government Workplace
Summary of the Topic
Whistle-blowing involves informing the public or a person in authority concerning illegal and dishonest activities taking place in a government workplace, companies, or in private or public organizations (Bouville, 2007). Potential forms of whistle-blowing at the federal workplace include gross mismanagement, fraud, abuse of authority, and violations of law and regulation. Whistle-blowing leads to serious implications; therefore, the whistle-blower must have a reasonable belief and be certain that the disclosure is accurate. In case an employee observes an unlawful practice and chooses to remain silence, he or she is considered a potential accessory to the unlawful practice through letting it to go on without reporting anything (Carson, Verdu, & Wokutch, 2007). There is a general consensus that whistle-blowing is ethical if the provided evident is relevant and significant. Most employees in public administration observe a number of unlawful practices committed by their bosses and intent to do what is ethically right through reporting their employers. However, there is an increasing concern about their safety after reporting such incidences (Grant, 2002). The decision to blow the whistle and report unethical practices is not hard; however, there are significant challenges because whistle-blowers face the risk of retaliation by their seniors. There are rampant cases reported whistle-blowers have been suspended or terminated. Retaliation against employees who disclose unlawful acts is illegal according to Title VII of the Civil Rights Act of 1964 (Grant, 2002). Irrespective of these laws that discourage retaliation, whistle-blows have reason to fear the effects of disclosure and even face punishment for doing what is morally right by reporting the unlawful practices of their supervisors.
These dangers pose the question of whether it is worth for employees at a federal workplace come forward when they witness an illegal act, or should they maintain silence to evade the probable costs and time, and potential retaliation that could damage their careers. Therefore, there should be adequate protection from employees who come forward when they witness an unlawful practice at the workplace. There are different viewpoints concerning the benefits of whistle-blowing, with some authors conceding that whistle-blowing is not effective in fostering change. For instance, Near and Michael (1996) argues that whistle-blowing does not benefit anyone and harms many, even the whistle-blower is a potential victim of retaliation. Near & Michael (1996) maintains that whistle-blowing should be the last resort only after it has been established that that the desired results will be achieved. For all the controversy surrounding whistle-blowing, it is evident whistle-blowing is beneficial to organizations and societies, but these benefits are not appreciated because of the controversies involving incidents of whistle-blowing. Numerous studies have affirmed the benefits of whistle-blowing at the workplace. A study involving federal employees in the US revealed that whistle-blowing was an effective tool for initiating procedural, policy and personnel changes. The study also pointed out that whistle-blowing resulted in congressional ad internal investigations that facilitated the conviction and criminal indictment of the perpetrators of the unlawful acts (Carson, Verdu, & Wokutch, 2007). Other studies have reported the benefits of whistle-blowing, which include changes in the policy agenda of the government, significant changes in public policies, and changes with regard to the organizational and bureaucratic procedures. These observations serve to validate the advantages of whistle-blowing as an effective tool to implement changes in public organizations and society. As a result, there is the need to ensure adequate protection of whistle-blowers and encourage the practice among federal employees (Rothschild & Miethe, 1999). This topic is important because whistle-blowing can be used as a tool for enhancing the effectiveness of public governance. The following literature reviews show the findings that will be used for deriving conclusions.
Literature Review
A study by Alford (2007) affirmed that whistle-blowing usually imposes negative consequences on the whistle-blower. Irrespective of legislation to protect whistle-blowers from employer harassment and retaliation, employers still have various opportunities to retaliate. Further, the study reported that, in cases involving theft, corruption, and environmental and health hazards that are likely to hurt the public good, whistle-blowers are often receive the support of tax payers. The whistle-blower perceives his or her actions as ethically right whereas the employer views such actions from a different perspective (Alford, 2007). As a conventional rule, there is comfort is upholding one’s ethical values; however, whistle-blowing imposes practical outcomes that impede the decision to come forward. Therefore, employees must scrutinize their motives for whistle-blowing. If whistle-blowing is motivated by personal agendas, then whistle-blowing is not the most suitable alternative. However, it is for public interest, whistle-blowing is the best alternative irrespective of the probable negative consequences for the employee.
Ayers & Kaplan (2005) conducted a study to illuminate the motivating factors that encourage employees to come forwards when whistle-blowing, which was helpful in coming up with a model for reporting unethical practices witnessed by employees. They deployed an experimental approach and identified four considerations that influence the whistle-blowing behavior, which include the perceptions about the seriousness of the unethical act, personal costs, judgments relating to moral equity, ad individual responsibility about the witnessed wrongdoing. Ayers & Kaplan (2005) further suggested that measures should be set up to encourage the whistle-blowing behavior among employees.
Bernie (2007) conducted a study on legal cases to determine the extent to which legal cases provide protection against retaliation on whistle-blowers by employers. Bernie (2007) reviews the case of Garcetti v. Cabellos, wherein the US Supreme Court decalred that public employees lack entitlements to the First Amendment protection from retalation when they comment to their official responsibulities at work. In the case, Cabellos, a county deputy in the District Attorney’s office, came forward after finding out that a sherriff had alied about search warrant application. Cabellos was later dired, and the 9th Circuit Court of Appeal maintained that the First Ammendment Protected Cabellos’ rights. The Court held that Cabellos came forward as a citizen in regard to matters of pubic concern, which was considerable different in the case of speaking for personal interests. Nonetheless, the US Supreme Court revesed the decision and declared that Cabello’s rights to freedom of speech were not protected because he did not speak as a private citizen, but as an employee.
Drachsler (2008) reviewed the impacts of a court’s decision on the future cases involving retaliation. According to Drachsler (2008), the decision in Garcetti v. Cabellos case implied that in future cases, whistle-blowers lacked protection. The outcome of the case implies that a comment made by a public employee that is considered part of his or her official duties, and not as a citizen, does not warrant the First Amendment protection. Even when a public employee comes forward about an unethical practice at the workplace, the employer can still retaliate at the employee through firing and disciplining. The author provides another case of Casey v West Las Vegas Independent School District, wherein the court held that the First Amendment right to free speech of the superintendent was not protected when he came forward. The court held that the superintendent comments were factual, that the school had embarked on enrolling children from families that did not meet the requirements for the Head Start programme. Nevertheless, the court maintained that because the superintendent speech was not carried in the context of her official duties, she did warrant a protection according to the whistle-blower law.
Lavan & Katz (2006) reviewed a judicial case whereby the jury awarded an employee because of retaliation from the employer after blowing the whistle. The Jury awarded a whistle-blower $ 500,000 in the Schutts v. Feldman in damages because of the interference from his employer on his rights of speech. Schutts came forwards after his employer abused his power by agreeing to take an unacceptable donation because of the strings that the donor attached. Lavan & Katz points out that that Schutts was denied a merited promotion because of his whistle-blowing acts. Schutts make a public comment by writing to newspapers criticizing the decision of his employer in accepting the donation. The jury awarded Schutts monetary damages for retaliations against whistle-blowing by his employer. Lavan & Katz (2009) use this case study to advocate for incentives at federal workplaces to cultivate the whistle-blowing behavior.
According to Neil (2005), the Equal Employment Opportunity Commission reports an increase in workplace retaliation for employees who come forward after they witness unlawful acts. For instance, in 1991, there were about 7900 cases of retaliation filed by the commission; however, the number has increased to approximately 22600 cases by 2003. Neil argues that retaliation is illegal according to the Civil Rights Act of 1964. The study by Neil reveals that retaliation is extremely difficult to prove because employers have devised methods to get around the legal system for their benefits (Neil, 2005). An example is the 8th Circuit Court of Appeal in St. Louis that declared that retaliation filed after six months of discrimination cannot hold up in a court of law. The suspected retaliation must be related to the complaint of discrimination, unless the retaliation is clear, six months is an extremely long time to file a case. Therefore, employers wishing to retaliate and are knowledgeable of the six months rule can buy their time to avoid being sued. Neil (2005) advocates for strict legal provisions to address the issue of retaliation against whistle-blowers.
Nigro, Nigro, & Kellough (2007) undertook a study on legal cases to examine the relationship between the legal provisions on freedoms of speech and whistle-blowing, which is a fine line that is open for controversy. In the case, Pickering v. Board of Education, the US Supreme Court maintained that public employees must not be forced to surrender their rights of speech as private citizens; however, the state have the right to control employee speech in matters relating to public concern (Nigro, Nigro, & Kellough, 2007). The Supreme Court has handled numerous cases relating to retaliation against employees; an example is the Rankin v. McPherson case, wherein an employee was a victim of retaliation because of exercising his freedom of speech. In this case, McPherson provided a negative commentary about the attempted assassination of President Regan, and was later fired for the commentary. The Court held that the firing was illegal on grounds that free speech is protected at the workplace if it is not disruptive. Nevertheless, in the event a whistle-blower causes disruption, but protects the public interest, the Court can rule in favor of the employee.
A report by the Congressional Research Service (2007) reveals that the Whistle-blower Protection Enhancement Act of 2007 broadens the scope of the whistle-blower law to provide adequate protection against retaliation to employees of government contractors, workers in the national security, and other people who come forward to reveal the unethical practices in the federal government. Initially, the CIA and FBI were excluded from whistleblower protections. The 2007 Act also included employees reporting government waste, abuse of tax payer funds, and fraud. The passage of this Act had the main objective of encouraging a system that rewards whistle-blowers instead of retaliating against them. The Act has strengthening the whistle-blower law by providing whistle-blowers with the right to dispute reprisals made by the Federal Court. There is the likelihood that the Act will encourage whistle-blowers to come forwards without fears of retaliation (Congressional Research Service, 2007).
Egan (1990) undertook a study to determine the value of whistle-blowing to the society. Whistle-blowers receive various praises from the public for various reasons. Egan (1990) reports that whistle-blowers make ensured that employers adhered to rules and refrained from unethical practices because of the fear that they were under watch. In addition, whistle-blowers offered information to the public regarding their employers that could be helpful for the public good. Egan (1990) affirms that the whistle-blower is the only source of information to the public concerning the unlawful practices at the workplace such as misappropriation of taxpayer funds. However, they normally suffer from the retaliation by their employers through demotion, harassment, termination and other discriminatory acts. Despite the fact that there are laws to address retaliation against whistleblowers, the employment-at-will doctrine has stopped many potential whistle-blowers. In addition, there is public policy exception. Egan (1990) advocates for whistle-blowing practices and argues that the whistle-blowers must be rewarded for their ethical behaviors instead of being punished because they protected the public good.
Fuance & Jefferys (2007) initiated a study to evaluate the ethical foundations of whistle-blowing. Fuance & Jefferys (2007) consider whistle blowing as an ethical behavior that should be nurtured in federal workplaces. The study reported that whistle-blowing is an effective tool to bring to an end wrongdoing at the workplace. Whether whistle-blowing is motivated by either personal or public interests, the goal is the same and serves to bring to light an unethical practice within the workplace. The advantages of whistle blowing provided an appropriate framework for arguing in favor of whistle blowing.
Jackson, Peters & Luck (2010) conducted a study to investigate the reasons why employees decide to blow the whistle and to offer insights to the experiences of whistle-blowing. The authors conclude that whistle blowing behavior is associated with the belief that employees are acting according to the duty of care. Employees usually serve as public advocates and feel obliged to report any wrong doings to the public. Jackson, Peters & Luck (2010) argue that there is the need to establish clear guidelines that provide opportunities for employees to voice their concerns.
Oliver (2003) provided an overview of the benefits and drawbacks associated with whistle-blowing. The article provided a summary of the pros and cons of whistle-blowing behavior among employee, and cites that whistle-blowing contributes significantly to public safety and moral responsibility. On the other hand, whistle blowing faces significant challenges associated with the risks of retaliation and conflicts of interest. Overall, Oliver (2003) concluded that whistle-blowing is an effective instrument for improving public governance.
Parsons (2004) provided a framework for effective whistle-blowing. Parsons (2004) reported that whistle-blowing results in serious implications; as a result, it is imperative for whistle-blowers to have a reasonable belief and be sure that their disclosures are accurate. In the event an employee witnesses an unlawful practice and opts to remain silence, he or she is perceived a potential accessory to the unethical practice by letting it to go on without reporting anything. There is a general consent that whistle-blowing is ethical if the provided evidence is relevant and significant.
(ansey & Keheller (2004) maintain that whistle-blowing behavior in organizations does not help in establishing avenues for effective help lines. There are a few organizations that encourage whistle-blowing; in the light of this view, the authors question the effectiveness of whistle blowing in public administration and federal workplaces. This resource advocates for other alternatives to whistle blowing such as effective help lines characterized by anonymity for employees reporting such actions.
Irrespective of laws aimed at protecting whistle-blowers, a significant number of employees who come forward are likely to suffer from various forms of employer retaliation such as demotion, termination and suspension. Egan (1990) maintains that if the public interest is at stake and a federal employee observes an unethical practice, then the employee has an ethical obligation to blow the whistle. There is a contentious debate involving whistle blower laws in state courts and the Supreme Court, this is evident by the fact that there are some cases whereby whistle blowers who are victims of retaliation are sometimes protected by the law whereas in other situations, such whistle-blowers suffer from employer retaliation especially when courts do not rule in favor of the whistle-blower.
Bruce (2007) points out that the time and money used in a court of law after whistle-blowing may discourage a potential whistle-blower from coming forward. The contradictions in the whistle-blower laws and provisions of the First Amendment are also a significant barrier against whistle blowing. Nevertheless, there are cases where whistle-blowers have received monetary rewards from the court in the form of damages. Lavan & Katz (2006) point out the case of Schutts v. Feldman wherein the employee received a monetary reward worth $ 500,000 in the retaliation claim. Bernie (2007) points out another case, Garcetti v. Cabellos, wherein the Court maintained that the employee did not have the right to speak against the unethical act if it was not related to his official responsibilities at work. The outcome of this case impeded the effectiveness of whistle-blowing because employers can circumvent the legal system to avoid retaliation claims.
However, the new legislation passed in 2007 has helped in widening the scope of Whistle blower protections to include all federal employees and contractors working for the government. The 2007 legislation also expands the existing laws; for example, the 1964 Civil Rights Act protects whistleblowers from retaliation if they report discrimination from their seniors. Irrespective of these laws, when a potential whistle-blower is considering the decision of coming forward, one should take into account whether a potential retaliation from the employer is a fine idea. Even in cases wherein whistle-blowers act out of good faith and public interest, there is the probability that the whistleblower can be harmed by the employer, have his reputation damaged and spend a significant amount of time and money in court to guarantee a favorable outcome. On the contrary, if an employer’s actions are clearly unlawful and retaliation is noticeable, it is highly likely that the courts will rule in favor of the whistle-blower.
It is apparent that whistle-blowing warrants protection from the law; however, in reality, they do not receive adequate protection from the law. Employers usually have an upper hand to initiate retaliatory acts against whistle blowers; for instance, if they are careful, they might not get caught. In addition, employers can wait after a given time duration has elapsed and initiative retaliatory actions without any consequence (Neil, 2005). The at-will doctrine also increases the difficulty of proving retaliation. Additionally, employers are more informed with regard to whistle-blower laws than their employees. Neil (2005) suggests that potential whistle-blowers should seek advice from an experienced attorney before embarking on the decision to come forward.
Dori (2011) conducted a study to investigate the benefits of whistle-blowing. The findings from the study revealed that whistle-blowing does not benefit anyone and harms many individual, including the whistle-blower who is likely to a victim of retaliatory acts by their employer. Dori maintains that whistle-blowing should be the last resort only after it has been established that that the desired results will be achieved.
Conclusion
The primary advantages of whistle blowing include moral responsibility and public safety. One of the primary reasons why employees decide to come forward on illegal acts is to protect the public from potential risks. In addition, employees have a moral responsibility to report such actions provided they have reasonable evidence. However, they face the risk of retaliation and conflicts of interest. It is essential to note that there are federal protections aimed at encouraging whistle blowing; however, they offer little support against hate and resentment from workmates, which has the potential of damaging working relationships.
References
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