Definition · Employment law and regulation
Whistleblower Protection
Definition
Whistleblower protection is the set of legal rules that stop employers from retaliating against employees who report suspected illegal conduct, safety hazards or fraud, internally or to a government agency. In the US it comes from dozens of federal statutes and many state laws, each covering specific types of reports and with its own complaint deadlines.
Also called: Whistleblower laws, Whistleblower policy, Speak-up protection
The main US laws
There is no single US whistleblower law. Protection depends on what the employee reported:
- OSHA Section 11(c) protects employees who raise workplace safety and health concerns. Complaints of retaliation must be filed with OSHA within 30 days. OSHA also administers the whistleblower provisions of many other federal laws, covering areas such as trucking, airlines, food safety and consumer products.
- The Sarbanes-Oxley Act (2002) protects employees of public companies who report securities or shareholder fraud.
- The Dodd-Frank Act (2010) created the SEC whistleblower program, with financial awards and anti-retaliation protection. SEC rules prohibit agreements that stop people from reporting to the SEC.
- The False Claims Act protects employees who report fraud against the government.
- The NLRA protects employees who act together to raise concerns about working conditions.
Many states add broader laws covering reports of any legal violation, sometimes including reasonable belief of a violation. Rules vary by state.
What counts as retaliation
Retaliation is any adverse action that could discourage a reasonable employee from reporting: firing, demotion, cutting hours, bad shifts, a sudden stream of write-ups, exclusion from training or a hostile reference. Timing matters. Discipline that starts right after a report is hard to defend even when there were real performance issues, unless those were documented before the report.
The employee usually does not have to be right about the violation, only to have a reasonable, good-faith belief.
What a whistleblower policy should include
A whistleblower policy, often part of the code of conduct, should give several reporting channels (manager, HR, legal, and an anonymous hotline or web form), say clearly that retaliation is prohibited and is itself a disciplinary offense, explain how reports are investigated and kept as confidential as possible, and state that nothing in the policy or any agreement stops employees from reporting to government agencies.
Train supervisors, because most retaliation claims start with a frontline manager reacting badly to a complaint. Route reports to a workplace investigation process that is independent of the people involved, and document every step.
Frequently asked questions
What are whistleblower laws?
They are federal and state laws that protect employees from retaliation for reporting suspected violations of law, fraud or safety hazards to their employer or to a government agency.
Who enforces whistleblower protection in the US?
Several agencies, depending on the law. OSHA handles retaliation complaints under more than 20 federal statutes, the SEC runs its own program, and states enforce their own laws.
What should a whistleblower policy include?
Multiple reporting channels including an anonymous option, a clear ban on retaliation, a description of how reports are investigated, confidentiality commitments and a statement that employees can always report to government agencies.
Can an NDA stop an employee from whistleblowing?
No. Agreements cannot lawfully prevent employees from reporting possible violations to agencies such as the SEC, and the SEC has taken action against companies whose agreements did.