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Jan 9, 202012:05 PMOpen Mic

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How attacks by Trump and Congressional Republicans have had a chilling effect on whistleblowing

I am an employment law attorney, not a political strategist or commentator. However, the current presidency is notable for its effect on workplace law. Only a few other modern presidents can say they’ve had a significant effect on the everyday worker in such a short amount of time. Some of these effects have been positive; others, not so much.

For instance, under President Trump, civilian federal workers now have 12 weeks of paid parental leave. While this initiative is limited to federal employees who are new parents, it’s a positive step in the right direction and a historic first.

On the other hand, the Trump administration has taken positions that do not help the average worker in America. For example, the crackdown on undocumented workers has made it easier for employers to abuse workers and retaliate against them if they ever speak up.

Then there’s a proposed rule change by the U.S. Department of Labor regarding overtime pay eligibility. The Trump administration supports modifying the regulations to make it easier for workers to receive overtime pay. However, these modifications don’t go as far as those originally proposed by President Obama.

But the largest step back may have to do with government whistleblowers. This is due to President Trump and the Republican Party’s handling of the Ukraine whistleblower revelation and subsequent impeachment proceedings.

An overview of whistleblower laws

Corruption and illegal conduct are rampant around the globe. Whether it’s in government or business, improper behavior happens everywhere. One reason it’s so prevalent is because it’s hard to detect.

Realizing this, lawmakers passed a series of laws to protect people with inside knowledge from retaliation when they come forward to blow the whistle on improper behavior. Depending on where the conduct occurs or who it involves, any number of whistleblowing laws may apply. For example, here are some federal laws with whistleblowing protections:

  • False Claims Act
  • Intelligence Community Whistleblower Protection Act
  • Occupational Safety and Health Act
  • Surface Transportation Assistance Act
  • Asbestos Hazard Emergency Response Act
  • Safe Drinking Water Act
  • Sarbanes-Oxley Act
  • Affordable Care Act
  • Consumer Financial Protection Act
  • Taxpayer First Act

Depending on the law, there will be provisions that bar retaliatory actions for whistleblowing activities, allow whistleblowers to sue for damages if they suffer from retaliation, and even provide a financial reward for whistleblowers who reveal schemes to defraud the federal government.

But these provisions are often not enough to protect the whistleblower. Due to the difficulty in prosecuting those who retaliate against whistleblowers, one of the strongest protections for a whistleblower is the ability to stay anonymous. This protection exists in the Intelligence Community Whistleblower Protection Act (ICWPA).

The ICWPA is a law that protects whistleblowers who want to report wrongful conduct in the national security and intelligence realm. It also sets out the reporting and investigation procedures when a whistleblower makes a report.

It’s this law that is at issue concerning the Ukraine quid pro quo controversy and the impeachment of President Trump. Unfortunately, the ICWPA’s anti-retaliation provisions are fairly weak. Also, the political nature of what the whistleblower reported makes it that much more difficult to protect him or her from retaliation.

Retaliation by the president and Congressional Republicans

The strongest retaliation has come from the president himself when he seemed to imply that those who gave information to the whistleblower be executed. He also referred to the whistleblower as a “disgrace” and has made repeated attempts to know the whistleblower’s identity.

Then there are personal attacks by the president and the White House against those who testified in less-than-flattering ways during the impeachment and Ukraine quid pro quo investigations. A few of the recipients of these attacks included former Ambassador Marie Yovanovitch and Lt. Col. Alexander Vindman.

While not being as blatantly retaliatory as the president, Congressional Republicans have taken steps to undermine the whistleblower and whistleblowing process. Specifically, they have tried to reveal who the whistleblower is.

For example, Rep. Louie Gohmert from Texas publicly identified the individual who some Republicans believe is the whistleblower.

Sen. Rand Paul from Kentucky said at a rally in Kentucky that the media should “do your job and print his name” in reference to outing the whistleblower. Then, Sen. Lindsey Graham from South Carolina voiced his support of Sen. Paul stating that it would be “very responsible” for the media to identify the whistleblower.

During Vindman’s testimony, Reps. Jim Jordan of Ohio and Devin Nunes of California asked leading questions to try and obtain information to identify the whistleblower’s identity.

To be fair, not all Republicans are trying to harass, undermine, or publicly identify the whistleblower. Sen. Chuck Grassley of Iowa has called for honoring whistleblower protection laws and protecting whistleblowers. This includes working “to respect whistleblowers’ requests for confidentiality” and declaring that “media reports on the whistleblower’s identity don’t serve the public interest.”

These statements should come as no surprise given Sen. Grassley’s involvement in creating federal whistleblower laws and serving as the chairman and co-founder of the Senate Whistleblower Protection Caucus.

But given the breadth of his colleagues’ efforts to undermine those laws, it is not enough.

The chilling effect of the retaliation

In a December 2019 survey of almost 700 federal employees, the Government Business Council reported some significant findings concerning the consequences of the rhetoric about the Ukraine quid pro quo whistleblower.

As a whole, the rhetoric concerning the whistleblower, as well as attacks against the so-called “deep state” has reduced the overall feelings of safety among federal employees. Fifty percent stated that their perception of their safety is either somewhat negative or very negative. Contrast that with 3 percent saying their perceptions are somewhat positive or very positive.

Most chilling of all is the following statistic: 34 percent of respondents surveyed agreed that “the attacks on the whistleblower by President Trump and various Congressional Republicans have made it much less or somewhat less likely that [they] would report an act of perceived wrongdoing to the appropriate authorities.” In response to the same question, 50 percent said the attacks made no difference and 16 percent said it made it more likely they would report wrongdoing.

This trend continues with not just whistleblowing, but also “vocaliz[ing] differences of opinion over policy implementation in my work environment.” In response to this statement, 32 percent said they were much less or somewhat less likely to make such a vocalization, 13 percent reported it was somewhat more or much more likely, and 54 percent said the attacks on the whistleblower by President Trump and Congressional Republicans made no difference.

It should be noted that with respect to the political affiliation of respondents, 24 percent thought of themselves as a Democrat, 34 percent as an independent, and 26 percent as a Republican (3 percent thought of themselves as “other” and 14 percent preferred not to answer).

Bottom line

At the end of the day, the behavior of the president and members of Congress has had a real-world effect in making it harder for whistleblowers to speak up. Whether it’s fear of retaliation or the belief they won’t be taken seriously, the fewer whistleblowers that step forward, the more difficult it will be to root out illegal conduct or other forms of wrongful behavior.

Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Washington, D.C., and Nashville, Tenn., where he focuses on workplace law helping protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment, and wrongful termination in the workplace.

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