Custom «The Whistleblower Protection Act of 1989: Visible to All, Protecting Few» Essay Paper

Since the dawn of modern-day corporations, deviance has been actively embraced by employees around the world. Corporate deviance is not limited in name to business entities, but expands and includes government agencies and departments. The continued promotion of deviant acts in the federal government can be accredited to the fear of the consequences that resulted from “blowing the whistle” on unethical and illegal acts. The Whistleblower Protection Act of 1989 is a United States federal law that seemed to be the saving grace for individuals upholding their ethical responsibilities and, furthermore, the guiding principles of many institutions and agencies plagued with deviance. The Act was meant to be a protective measure for people who wished to report misdoings by the federal officers (Weinstein, 1979). However, as many positive initiatives turn against their intended purposes, the Act has equally been used improperly and there have been more conflicts that have arisen during the implementation of the Act, rather than bringing the harmony and better working conditions to the federal employees. This has been so because the “protection” has been taken up as more of an attempt to resolve the retaliatory personnel actions against federal employees and applicants, rather than an avenue for employees getting better and more conducive working conditions, or even a way to ensure that there is less abuse of power by senior employees. The Act has therefore continually failed to meet its target as expected. Though termed as an Act for all, its success has only been felt by a few people, making it unfair to the low rank employees (Weinstein, 1979).

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Whistle blowing

Whistle blowing is the act of exposing wrongdoings by people within an organization. The whistle blower is the person who exposes the unethical behavior (Akaka, 2012). The exposure is made by co-workers within the organization and it is usually inspired by their willingness to have an ethical society. The process to blow the whistle is risky because the blower could face the challenge of getting victimized and therefore provided with reassurances on their part, if they exposed a wrongdoing (Akaka, 2012).

Corporate Deviance

Corporate deviance refers to the situation where employees carry out criminal acts that are geared towards improving the image of the organization they work for, subunit(s) of the organization or even the description of their own duties (Simon & Stanley, 1982). They do this with an aim of improving the image of the organization, but follow unethical means. Many employees have been accused, tried and jailed for this crime. A good example is that of Martha Stewart who was jailed for five months despite being wealthy, powerful and widely known. She had lied to federal investigators about an alleged illegal sale of stock in a biotechnology organization, ImClone Systems Inc, in 2005. Corporate deviance can involve an individual or a group of individuals within an organization. Examples of corporate deviance include untrue advertising, violation of labor laws, production of hazardous goods, violation of Occupational Health and Safety guidelines within an organization among others. In each of these situations, the organization has a gain and the employees involved would ensure that the criminal act remains a well-guarded secret within the organization (Simon & Stanley, 1982). For example, when a company management decides to fund political campaigns illegally, they get the benefits of having laws that would regulate their operations reduced. This is a criminal activity and should be prosecuted. Further, false advertisements would increase the market that the product covers by creating an artificial demand. 

The Whistle Blowing Act of 1989

The Whistle Blowing Act of 1989 was put in place to expose the unethical activities, such as corporate deviances. Its need came as a result of the tendency of firms to engage in corporate deviance, which was at times very risky, yet they escaped because the employees would not report the criminal activities within their operations. If an employee tried to report to the authorities, he/she was easily dismissed without course and there was no way that he/she would get back his/her job. Poisonous products were let out to the public with the knowledge of the employees, yet they would never say anything about the products. For instance, it is believed that the relationship between burning asbestos and contracting cancer is said to have been discovered since the 1920s. However, the employees could not publicize this and the first concern was raised in the 1970s. In the late 1970s, the revelation that the employees in the asbestos producing factories knew about the dangers of the products, yet decided to remain mute on the issue due to the victimization from their employer, prompted the government to come up with policies that would protect the employees who would make such a call. Some of those who have succeeded have also had their careers hurt by their disclosures and their revelations. 

The Protection Act is said to have its origins from the Civil Service Reform Act of 1978 (CSRA), which was signed into law by the then president Jimmy Carter (Alford, 2001). The president assured the employees who reported criminal cases of their protection through the Act. Other new state and federal laws were created. The laws were aimed at protecting employees from discrimination, unprocedural hiring and firing, retaliation of employers to employees for reporting criminal activities within organizations among other issues. The government created two agencies, Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) to enforce these policies.

Whistle blowing and corporate deviance

Whistle blowing has been a tool to reduce deviance since its inception in the 1970s (Miethe, 1999). Theoretically, it would be a very effective tool to deter deviance especially in private corporate. However, this feat has not been reached because there are many challenges that face it during the implementation process (Miethe, 1999).

While it has been lauded with praises on how it protects the employee`s interests, this has not been achieved and it has in turn become a mining field for employees with the audacity of reporting irregularities within the organizations they work for. Some of the employees are ready to risk their careers for the sheer promises that they would be guarded from being victimized by their companies. Eventually, the desired goal of reducing irregular practices especially in federal offices has not been achieved, and it seems like it would not be achieved through whistle blowing. However, it should be appreciated that if the proper channels of reporting were followed and protection honored, it would be a successful way of curbing corporate deviance. If it remains as it currently is, the goals set to be achieved through whistle blowing would remain a mirage.

Actions that lead up to Whistleblower law

The need to have this law created and enhanced came as a result of the increased discomfort between employers and employees.  While every senior leader of the federal government applauds the law in public, they always ensured that it did not work in their places of work. Before this Act was passed, its incubation and revolution started in 1978 as the Reform act. In its form at that time, it was less effective and, in fact, reduced the number of reported cases to just half of what had been normally reported before it was put in place. People feared that they would get victimized because the Reform Act seemed to strengthen the organization system and regulated the nature of cases that could be reported. The law even allowed for disciplinary action to be taken against the whistle blower, as long as it did not exceed two weeks of suspension. Employees, who attempted to blow the whistle, faced reassignments, paralysis of one’s career, and many other demoralizing consequences. The only relief that employees could get was the championship by the federal Office of Special Counsel (OSC). It was therefore unsurprising when OSC handled only one case between 1978, when the Reforms Act was put in place, and 1989, when it was refined into Whistleblower Protection Act of 1989 (Pickford & Wheelock 2012). The most aggrieved employees opted for the new body, the Merit Systems Protection Board, which was created for civil appeals. However, it was equally unsuccessful, having given appeal rights to only four cases out of over two thousand cases reported to them. All these cases that reached the threshold of approval came before 1984, from when no other case was successful. No whistleblower case prevailed under the Board between 1984 and the passing of the Whistleblowers Act of 1989. By 1989, it was inevitable that the government needed to address the issue of employee dissatisfaction. This unanimous need led to the Act being passed by the Congress twice in 1989 (Pickford & Wheelock 2012).

The Act lacks the anonymousity provision. If this was possible, it would be a very efficient way to repot cases of misuse of office or any other form of corporate deviance. When employees feel that their disclosure as whistleblowers could harm their careers, they report the case withholding their identities. These cases are usually received by the MSPB; OSC refuses to investigate such cases. They defy the wishes of the employee to retain anonymity, and refuse to investigate cases reported by undisclosed people. Lack of action by the government, through OSC, has led to fact that the whistle blowing employees started to follow the channel of Government Accountability Office (GAO). Reports have shown that only a third of the cases that are observed are reported to the Whistleblower’s Act of 1989 implementation bodies, while a third is reported to the organizations` higher officials, and the other third is not reported at all. Many employees have therefore given up, despite the amendments that have attempted to make the Act more friendly to the whistle blower.

The lack of anonymousity in the whistle blowing cases is a very complex issue. Whether or not an employee gets prevention from the Act, it would be hard for the same employee to work with the people he reported of wrongdoing to the OSC. This makes the Act even harder to implement, especially from the social point of view. Employees grow hate among each other and this could eventuality affect the output per person. Therefore, the Act fails to fulfil its primary purpose which is…

to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by (1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and (2) establishing—(A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices; (B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and (C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration (Whitaker, 2007).

The Act does not cover all the federal employees. It excludes employees working in certain sectors, such as Postal Service and the Government Accountability Office. It also excludes employees from the Central Intelligence Agency, Federal Bureau of Investigation among others, who are regarded as intelligence bodies. They are excluded by the president because of the nature of their jobs. This means that some federal employees are treated unequally and poor management within the organization would be hard to determine (Simon & Stanley 1982).

The whole process of filing a case with OSC is long and very bureaucratic. This is not healthy, especially to people who have other fears such as discrimination due to whistle blowing. The process that starts with filing a case with MSPB, then the case is taken to OSC, who carries out the investigation, may seem to take a lot of time and resources of the complainant. When the investigations are underway, the whistleblower is affected and many people would leave the case without final follow up. This eventually translates to poor planning, and inadequate reaching of the OSC services to the intended people.

Provisions of the Whistleblower Protection Act of 1989

After the failure of the 1978 Act, the Congress saw the need to ensure that they reinforced the existing whistle blowing law to enhance its success (De Maria, 1999). It was therefore in 1989 that the Congress passed the Act that was meant to balance between the employees who were afraid of their positions if they disclosed information, and the federal offices which had had an upper hand throughout the first Act. Whistleblower Protection Act of 1989 was put in place with several provisions that, basically, looked to reduce the discretionary authority of agencies, while increasing the rights of the employee during the due process of the law. The main modifications included:

(1) Giving whistleblowers control of their cases through an Individual Right of Action (IRA), providing expanded subject matter and personal jurisdiction for MSPB hearings

(2) Making the Office of Special Counsel a risk-free option by eliminating previous discretionary authority that the Special Counsel had abused to undermine whistleblowers' legal interests

(3) Expanding the scope of protection by eliminating prior loopholes, broadening the shield for protected conduct, and expanding the scope of illegal employer conduct

(4) Creating more realistic legal burdens-of-proof in order to enable whistleblowers to prevail.

These ensured that there was a better ground for employees to lodge complains and control their cases. The main policy under the modifications looked to ensure that the OSC would always work in the interest of employees who blew the whistle (De Maria, 1999). Those found guilty of harassing whistleblowers would be given disciplinary prosecutions, which was to be made at the expense of the remedial litigation.

 All through the first version of the 1979 Act, the employees were supposed to ensure that they engaged in the special counsel that was within the mandate of OSC (Glazer & Penina, 1989). The 1989 Act removed this provision and employees could represent themselves. At the same time, it was amended and employees could not just file litigations for suspensions for at least two weeks, but also ensured that there was enough ground to ensure that the employees could file against their organizations for the slightest change in treatment due to acts of whistle blowing (Glazer & Penina, 1989).

To ensure that there was full fairness in the implementation of the Act, the 1989 Act put in place three measures. First, it was supposed to ensure that the complainant received better services from OSC. Secondly, they enhanced the control that employees had over the information that would be used by the Special Counsel. Finally, there were provisions and guidelines that allowed the employees to control the procedural options by the OSC. These three measures ensured that there was fairness to the employees. If the three are not upheld, the OSC was obliged by the law to explain why the situation turned out against these measures.

Among the main causes of failure of the 1978 Act was what was termed as the "Swiss cheese syndrome". The new Act ensured that there should be absolutely no retaliation from any side over the acts of whistle blowing to the whistleblower. This was cemented and strengthened, then put under the watch and mandate of the CSRA. If an employee raised alarm over an issue, termed in the Act as “a disclosure” with evidence of illegality, no action should be taken against the employee. The article “a” was substituted with “any” under the amendment of 5 U.S.C. 2302 (b)(8).

Whistleblowers were also given a transfer preference if they won the case (Simon & Stanley 1982). A syndrome dubbed “you can’t go home again” was meant to ensure that whistleblowers were not pursued after their success and sent home on other grounds. It was determined that firms tried to show that they supported the Whistle Blowing Act, but they would later victimize employees on basis that could not be contested. They would ensure that the employees make mistakes and accumulating them would make them justified to terminate their employment. Two of the four employees, who succeeded in whistle blowing between 1979 and 1988, were fired again after being readmitted after the conclusion for their respective cases. Therefore, the 1989 Act ensured that an employee could easily request and get issued with a transfer to ensure they got better working environments.

In 1994, the Congress made amendments to the 1989 Act where they noted that despite being among the best written laws in the US, it was among the worst implemented. It noted that whistleblowers were more victimized than protected, which was contrary to the initial objectives of the Act. The Congress added twenty regulations to ensure that the implementation of the Act was more successful. Those firms that retaliated against employees were now realistically going to lose after the 1994 amendments. Further, employees of government corporations, such as those working in legal services corporations, were allowed to blow the whistle. It also improved the working conditions for employees who decided to blow the whistle.

Examples of Whistleblower Cases

Over the years of development of the Whistleblowers laws, many cases have been used. Many of these have been used as benchmarks to improve the prevailing Act, which has eventually led to the laws we have today. One of the renowned cases in the 1970s was that of Mt. Healthy v. Doyle 1978. The Berube v. General Services Administration case prompted reversing the burden of proof from the employee and more of it was supposed to fall to the employer as well. This had been partially prompted by the Mt. Healthy v. Doyle. The two cases Russell v. Department of Justice  and Special Counsel v. Spears prompted the 1994 amendments. Morrison v. Department of Army case saw the complainant get the benefits created by the 1994 amendment.

Weaknesses of Whistleblowers Act of 1989 in Fighting Corporate Deviance

First, the Act always starts to protect the employee after the reprisals against the employee have been started. Most whistleblowers have always reported irregularities in good faith, which later lands them into trouble of discrimination. Due to the fact that the Act starts to protect the employees at an advanced stage, there is usually little or not enough evidence that the reprisals are as a result of the employee’s whistle blowing. The organization ensures that there are a lot of activities that cannot be disclosed because the firm covers most of its activities before they start reprisals, leaving little and usually inadequate evidence to be used against it.

While there are many provisions for the Whistle Blowing Act of 1989, the same does not reflect on the individual employees (Kipnis, 1981). There are many more ways that an employee can be harassed without evidence. Among the main ways that organizations use is the use of rumors. This unsettles the employee and affects his/her working conditions. This leaves the employee at an impossible position because they are affected directly on their daily activities; and in many cases mentally. This is a main weakness of the Act because the employees are left alone within the organization they work for. These employees in many cases are left alone with their cases to see to it that they salvage themselves from the cases. They are therefore left to fight large organizations with little support, leaving them at a very small chance of getting their whole wishes (Kipnis, 1981).

The Act has consistently disregarded the issues raised by whistleblowers (Hager & Bob, 1999). Since the Act mainly looks into the actions of the company towards a whistleblower, little is covered regarding the issue that the employee had raised. This leaves the whistleblower vulnerable, yet there is little emphasis on the issue that led to the state of vulnerability. When addressing the reprisals, little is mentioned on the original issues. The Act fails to ensure that there are reforms as a result of whistle blowing.

As a result of all these weaknesses, many people have lauded the laws as symbolic politics, meant to appeal the public, yet their effects are not enough to cause an impact on the main issues that are raised. There is little follow up of the actions of organizations that ensure that the organizations making unduly processes change their trends to better and more ethical standards. It is therefore clear that there is little that the Act has done to eliminate corporate deviance from the main stream (Hager & Bob, 1999). Many of the provisions in the Act are impractical in the current social structures because more powerful people always have an upper hand when it comes to legal confrontations.

Due to these weaknesses, whistleblowers are reminded to take into consideration the following issues before they go ahead to expose deviance in organizations they work for. They include adequate data collection, writing of coherent accounts, having a clear understanding of the organizational dynamics, support building from supportive peers, having a good self understanding, and using the correct channels in their practices.

Conclusion

Since 1978, there has been a need to ensure that employees can report any form of corporate deviance within their organization. The creation of the law regulating this issue has always been hard due to the social structures involved. There is a need for employees to have a good traction of whatever the employees report and the steps taken in their favor, if their allegations are found true. The Act of 1989 and the amendments made in 1994 were seen as very effective ways to ensure that employees are well heard and that there was enough security on their jobs and good working conditions. This is however not the case and the Act can be said to have failed to achieve the attempted goals. Despite raising the flag over malpractices, little is done on these malpractices; it leaves the employee vulnerable, because little is done on the issue that is raised by the employee.

Despite the failures, the Act opens up a very wide door that shows the people`s needs. Since time immemorial, poor treatment of employees has been evident in almost all organizations. The Act reflects the social needs and though the existing channels have failed, the society shows the need to have more improvements on the Act to ensure that even the weakest employees feel the legal security around them.

Recommendations

One of the main recommendations to make on the Act is the inclusion of special investigation of cases that are forwarded by people without disclosing their identity. While one would naturally wish to have a good working environment, and have the evils around them reported, there is always fear about what people would think about their decision to forward matters to the higher authorities. To ensure that one keeps the social fabric intact and to ensure that the interpersonal relations between the employees do not affect the output of a certain firm, the inclusion of anonymity would be made. Research has shown that most people would not report the evils in their organization in fear of what other people would think about them.

Secondly, the Act should be broadened to include the issues that are raised by the employees instead of just addressing the outcome of the employee`s reports. In the past, the whistleblower’s first issues were disregarded for most of the processes, since the Act only comes into play when the employee has been harassed during work as a result of blowing the whistle. Therefore, addressing the outcome of whistle blowing may not be very successful, but the determination of the authenticity of the allegations by the whistleblower over corporate deviance should be included in the Act. In this case, it would be easy for bodies that offer protection to employees to do so comprehensively, since the issues raised in the first place are considered throughout the process.