PUBLIC SECTOR WHISTLEBLOWERS
Law and Government Division
Revised May 2000
U.S. FEDERAL STATUTORY PROTECTION
Examples of Specific Statutory Anti-Retaliation Provisions
B. Civil Service Reform
Act of 1978
EXAMPLES OF U.S. STATE LEGISLATION
C. New Jersey
D. New York
PUBLIC SECTOR WHISTLEBLOWERS
The past couple of decades
have seen growing support in the United States for the statutory protection
of employees who act in the public interest by disclosing conduct by their
employers that constitutes a breach of law or regulations, or that is
otherwise contrary to public policy. A number of federal and state statutes
have been enacted to promote such employee disclosure of information,
which is known as "whistleblowing." Some statutes provide general
protection with respect to retaliation against certain employees who blow
the whistle, while other statutes pertaining to particular subject areas
provide protection for employees exercising specific rights that they
This paper is limited to
a discussion of U.S. statutory protection for public sector whistleblowers,
both federally and in the selected states of California, Connecticut,
New Jersey and New York.
FEDERAL STATUTORY PROTECTION
of Specific Statutory Anti-Retaliation Provisions
A number of U.S. federal
statutes that create rights for and impose duties upon employees contain
protections against the discharge or disciplining of such employees who
disclose wrongdoing by their employers in the exercise or performance
of these rights or duties. Employees in both the public and private sectors
are protected by such anti-retaliation provisions.
Such provisions are primarily
found in federal statutes regulating employment. They generally prohibit
employment reprisals against employees who complain to a specified public
authority about their employers breach of statutory duties, such
as maintenance of safety in the workplace or payment of minimum wages,
or against employees who claim a statutory benefit, such as workers
compensation. Examples include the whistleblower provisions in the Occupational
Safety and Health Act,(1) the Fair
Labor Standards Act,(2) and the Age Discrimination in Employment
As a general rule, these
anti-retaliation provisions provide for reinstatement of an employee who
has been subject to retaliation, and for compensation for loss of wages
and seniority. Such provisions in some statutes also provide for civil
sanctions against an employer who takes an employment reprisal, including
the imposition of liability for the employees legal costs and, where
appropriate, exemplary damages.
also appear in a number of other federal statutes dealing with specific
issues. For example, they are commonly included in environmental legislation,
such as the Toxic Substances Control Act,(4)
the Water Pollution Control Act,(5) and the Clean Air Act,(6) provisions of which protect any public or private sector
employee who discloses potential employer violations of these environmental
laws. The relevant provisions in these statutes are virtually identical
and provide for an administrative investigation and hearing within the
U.S. Department of Labor. Relief includes reinstatement, back pay, compensatory
damages, and attorneys fees. Some of the Acts also provide for the
awarding of exemplary damages.
B. Civil Service Reform Act
While the above statutory
provisions offer some protection for public and private sector whistleblowers
in the U.S., the protection is generally limited to disclosure of specific
statutory breaches pertaining to the particular subject areas covered
by the statutes such as labour standards, labour relations, occupational
safety and health, workers compensation, and environmental matters.
Federal public sector employees who have disclosed or who wish to disclose
government wrongdoing are granted much broader protection under the Civil
Service Reform Act of 1978,(7) hereinafter
referred to as the CSRA.
Under the CSRA, a federal
public employee who believes that he or she has been subject to a reprisal
for whistleblowing may seek relief in one of several ways. First, where
the reprisal has been of a serious nature, such as a discharge or demotion,
the employee may appeal directly to the Merit Systems Protection Board
(MSPB) which was established by the Act, alleging that a "prohibited
personnel action" has been taken as a reprisal for whistleblowing.(8) Second, an employee who is subject to a collective agreement
may be entitled to claim the CSRA protection as a defence to disciplinary
action by the employer in the context of negotiated grievance procedures.(9)
Finally, an employee may file a complaint with the Office of Special Counsel
(OSC), also established under the CSRA, which is empowered to investigate
the complaint and seek corrective action.(10)
In addition to providing
retrospective protection for employees who have been subject to reprisal,
the CSRA also creates a mechanism through which a prospective whistleblower,
who might otherwise hesitate to make a disclosure for fear of reprisal,
may make disclosure anonymously to the OSC and thereby ensure that the
information is brought to the attention of the appropriate authorities.
It should be noted that
the CSRA does not provide protection for all federal public employees.
Under the Act, the following positions are excluded:
[a position which is] excepted from the competitive service because
of its confidential, policy-determining, policy-making, or policy-advocating
[any position] excluded from the coverage of this section by the President
based on a determination by the President that it is necessary and warranted
by conditions of good administration.(11)
In addition, the Act does
not apply to:
a Government corporation, except in the case of a prohibited personnel
practice described under [5 U.S.C.A., s. 2302(b)(8)];
the Federal Bureau of Investigation, the Central Intelligence Agency,
the Defense Intelligence Agency, the National Imagery Mapping Agency,
the National Security Agency, and, as determined by the President, any
Executive agency or unit thereof, the principal function of which is
the conduct of foreign intelligence or counterintelligence activities;
the General Accounting Office.(12)
The Act prohibits an employment
reprisal against an employee for a disclosure of information that the
employee reasonably believes evidences:
a violation of any law, rule or regulation; or
gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety.(13)
An "employment reprisal"
may be in the form of any "personnel action," which is broadly
defined in the Act to include such matters as discharges, performance
evaluations, decisions concerning pay benefits and awards and "any
other significant changes in duties, responsibilities, or working conditions."(14)
Under the above provision,
protection is available to the whistleblower irrespective of to whom the
disclosure is made, except in specified instances. Public disclosure of
wrongdoing may be made by an employee under the Act as long as it is "not
specifically prohibited by law" or is "not specifically required
by Executive Order to be kept secret in the interest of national defense
or the conduct of foreign affairs."(15)
Protected disclosure of
government wrongdoing that falls within one of those confidential categories
may be made under the Act to the OSC, the Inspector General of an agency,(16)
or another employee designated by the head of the agency to receive such
As a result of important
amendments to the CSRA in 1989, the OSC was created as an independent
agency rather than as an independent component of the MSPB as it previously
was. Its three primary responsibilities, however, remained as follows:
the investigation of allegations of activities prohibited by civil service
law, rule or regulation, primarily allegations of prohibited personnel
practices as defined in the CSRA and, if warranted, the initiation of
a disciplinary or a corrective action;
the provision of a "secure channel" through which allegations
of waste, fraud, mismanagement, illegality, abuse of authority, or a
substantial and specific danger to public health or safety may be made
without fear of retaliation and without disclosure of identity except
with the employees consent; and
the enforcement of the Hatch Act, which restrains partisan political
activities of civil servants.(18)
only a small portion of the matters that are directed to the OSC.
The CSRA requires the Special
Counsel to maintain the anonymity of a federal public employee who blows
the whistle to him/her, unless the employee consents to disclosure of
his/her identity or "unless the Special Counsel determines that disclosure
of the individuals identity is necessary because of an imminent
danger to public health or safety or imminent violation of any criminal
law."(19) Prior to the 1989 amendments,
the Act provided that the identity of the whistleblower could not be disclosed
without his or her consent unless the Special Counsel determined that
such disclosure of identity was "necessary in order to carry out
the functions of the Special Counsel." It was apparently felt that
to retain this provision could have seriously undermined efforts to encourage
whistleblowers to come forward with disclosures. It would be unrealistic
to expect whistleblowers to volunteer information if they risked the disclosure
of their names and possible retaliation.
The Special Counsel, on
receiving information from a federal employee, must determine whether
there is a substantial likelihood that the information discloses a violation
of any law, rule, or regulation or gross mismanagement, gross waste of
funds, abuse of authority, or substantial and specific danger to public
health and safety. If he or she decides there is such a likelihood, the
information must be promptly transmitted to the appropriate agency head,
who must investigate the matter and submit a written report regarding
the alleged wrongdoing within a prescribed time.(20)
The written report must
be reviewed and signed by the agency head, and must include the following
a summary of the information with respect to which the investigation
a description of the conduct of the investigation;
a summary of any evidence obtained from the investigation;
a listing of any violation or apparent violation of any law, rule or
a description of any corrective action taken or planned as a result
of the investigation, such as
changes in agency rules, regulations or practices;
the restoration of any aggrieved employee;
disciplinary action against any employee; and
referral to the Attorney General of any evidence of a criminal violation.(21)
The agency is not, however,
authorized to disclose information that is specifically prohibited from
disclosure by "any other provision of law" or specifically required
by Executive Order to be kept secret in the interest of national defence
or the conduct of foreign affairs.(22)
The agencys report
must be submitted to the Special Counsel, who must in turn transmit a
copy of it to the complainant whistleblower, unless it contains evidence
of a criminal violation that has been referred to the Attorney General.(23)
The complainant may also submit comments to the Special Counsel on the
agency report within a prescribed time.(24) The Special Counsel must review the report
and determine whether the findings of the agency head appear reasonable
and whether the report contains the required information set out above.(25)
The Special Counsel must then transmit the report, together with any comments
provided by the complainant whistleblower and any appropriate comments
or recommendations by the Special Counsel, to the President and the congressional
committees with jurisdiction over the agency that the disclosure involves.(26)
Should the agency head fail
to submit the report within the prescribed time, a copy of the information
that has been sent to the agency head must be transmitted by the Special
Counsel to the President and the congressional committees with jurisdiction
over the relevant agency, along with a statement noting the failure of
the head of the agency to file the required report.(27)
The Special Counsel must
maintain and make publicly available a list of those matters, other than
criminal matters, that have been referred to agency heads and of reports
by those heads.(28) The Special Counsel
must also take steps to ensure that the public list does not contain any
information prohibited by law or Executive Order.(29)
Where the Special Counsel
determines that there are reasonable grounds to believe that a prohibited
reprisal has occurred, exists, or is to be taken, and requires corrective
action, he or she must report this to the MSPB, the agency involved and
the Office of Personnel Management, together with any findings or recommendations.
He or she may also report such determination, findings and recommendations
to the President. In the report, the Special Counsel may include recommendations
for corrective action.(30) If, after
a reasonable time, the agency has not taken that corrective action, the
Special Counsel may petition the MSPB to do so.(31)
The 1989 amendments also
made it easier for a U.S. federal public sector whistleblower (or the
Special Counsel acting on the individuals behalf) to prove that
a whistleblower reprisal has taken place. The legislation lowered the
burden of proof for federal whistleblowers who have suffered reprisals,
while raising the burden of proof for federal agencies defending their
personnel decisions. The federal employee must prove by a preponderance
of evidence that the whistleblowing was a contributing factor in the employment
reprisal.(32) This test was specifically intended to overrule case
law which required a whistleblower seeking redress to prove that his or
her protected conduct was a "significant," "motivating,"
"substantial" or "predominant" factor in an employment
reprisal. If a whistleblower proves that whistleblowing is a contributing
factor in such reprisal, the agency must demonstrate by "clear and
convincing evidence" that it would have taken the same action in
the absence of the whistleblowing.(33)
"Clear and convincing evidence" is a higher standard than the
"preponderance of evidence" standard previously used and which
applies in most civil matters in American courts.
OF U.S. STATE LEGISLATION
At the state level, as at
the federal level, a number of issue-specific statutes, primarily those
covering employment-related or environmental matters, protect employees
within the Acts jurisdiction who complain to a specified public
authority about breaches of their employers statutory duties. In
addition, at least 35 states have also enacted broader whistleblower protection
legislation designed specifically to protect public sector employees generally;
some of those statutes also protect employees in the private sector.(34)
For illustrative purposes,
the legislative provisions protecting public sector whistleblowers in
the states of California, Connecticut, New Jersey and New York will be
In California, state employees
who report improper governmental activities are protected against retaliation
by their superiors by provisions in the California Whistleblowing Protection
This Act states:
Legislature finds and declares that state employees should be free to
report waste, fraud, abuse of authority, violation of law, or threat
to public health without fear of retribution. The Legislature further
finds and declares that public servants best serve the citizenry when
they can be candid and honest without reservation in conducting the
For purposes of the Act, the following definitions
"Employee" means any individual appointed by the Governor
or employed or holding office in a state agency as defined by section
11000, including, for purposes of sections 8547.3 to 8547.7, inclusive,
any employee of the California State University.
"Improper governmental activity" means any activity by a state
agency or by an employee that is undertaken in the performance of the
employees official duties, whether or not that action is within
the scope of his or her employment, and that (1) is in violation of
any state or federal law or regulation, including, but not limited to,
corruption, malfeasance, bribery, theft of government property, fraudulent
claims, fraud, coercion, conversion, malicious prosecution, misuse of
government property, or willful omission to perform duty, or (2) is
economically wasteful, or involves gross misconduct, incompetency or
inefficiency. For purposes of sections 8547.4, 8547.5, 8547.10 and 8547.11,
"improper governmental activity" includes any activity by
the University of California or by an employee, including an officer
or faculty member, who otherwise meets the criteria of this subdivision.
"Person" means any individual, corporation, trust, association,
any state or local government, or any agency or instrumentality of any
of the foregoing.
"Protected disclosure" means any good faith communication
that discloses or demonstrates an intention to disclose information
that may evidence (1) an improper governmental activity or (2) any condition
that may significantly threaten the health or safety of employees or
the public if the disclosure or intention to disclose was made for the
purpose of remedying that condition.
"Illegal order" means any directive to violate or assist in
violating a federal, state or local law, rule or regulation or any order
to work or cause others to work in conditions outside of their line
of duty that would unreasonably threaten the health or safety of employees
or the public.
"State agency" is defined by section 11000. "State agency"
includes the University of California for purposes of sections 8547.5
to 8547.7, inclusive, and the California State University for purposes
of sections 8547.3 to 8547.7, inclusive.(37)
Section 11000, referred
to above, generally defines a "state agency" to include any
state office, officer, department, division, bureau, board and commission.
An anti-retaliation provision
in the statute provides that:
An employee may not directly or indirectly use or attempt to use the
official authority or influence of the employee for the purpose of intimidating,
threatening, coercing, commanding, or attempting to intimidate, threaten,
coerce, or command any person for the purpose of interfering with the
rights conferred pursuant to this article.
For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer, or conferring, any
benefit; effecting, or threatening to effect, any reprisal; or taking,
or directing others to take, or recommending, processing, or approving,
any personnel action, including, but not limited to, appointment, promotion,
transfer, assignment, performance, evaluation, suspension, or other
Any employee who violates subdivision (a) may be liable in an action
for civil damages brought against the employee by the offended party.
Nothing in this section shall be construed to authorize an individual
to disclose information otherwise prohibited by or under law.(38)
The State Auditor administers
the Act and investigates and reports on improper governmental activities.(39) Upon receiving specific information that any employee
or state agency has engaged in an improper governmental activity, the
State Auditor may conduct an investigative audit of the matter. The identity
of the person providing the information that initiated the audit must
not be disclosed without the written permission of that person, unless
the disclosure is to a law enforcement agency conducting a criminal investigation.(40)
In conducting an investigative
audit, the State Auditor may request the assistance of any state department,
agency or employee. No information obtained from the State Auditor by
any department, agency or employee as a result of the request or any information
obtained thereafter as a result of further investigation may be divulged
or made known to any person without the prior approval of the State Auditor.(41)
If the State Auditor determines
that there is reasonable cause to believe that an employee or state agency
has engaged in any improper governmental activity, he or she must report
the nature and details of the activity to the head of the employing agency,
or the appropriate appointing authority. If appropriate, the State Auditor
must report this information to the Attorney General, the policy committees
of the Senate and Assembly with jurisdiction over the subject involved,
or to any other authority that the State Auditor determines appropriate.(42)
The State Auditor has no
enforcement power. Where the State Auditor submits a report of alleged
improper activity to the head of the employing agency or appropriate appointment
authority, that individual must report any resulting action taken back
to the State Auditor. The first such report must be transmitted no later
than 30 days after the date of the State Auditors report and any
other reports must be transmitted monthly thereafter until final action
has been taken.(43)
Every investigative audit
is to be kept confidential, except that the State Auditor may issue any
report or release any findings that he or she deems necessary to serve
the interests of the state.(44) The above provisions do not limit the authority conferred
upon the Attorney General or any other department or agency of government
to investigate any matter.(45)
The Act further stipulates
that a state employee or applicant for state employment who files a written
complaint with his or her supervisor, manager or the appointing authority
alleging actual or attempted acts of reprisal, threats, coercion or similar
improper acts prohibited by the statute may also file a copy of the complaint
with the State Personnel Board, together with a sworn statement that the
contents of the complaint are true, or are believed by the applicant to
be true, under penalty of perjury. The complaint, if filed with the Board,
must be filed within 12 months of the most recent alleged act of reprisal.(46)
A person who intentionally
engages in acts of reprisal, retaliation, threat, coercion, or similar
acts against a state employee or applicant for state employment for having
made a protected disclosure is subject to a fine not exceeding $10,000
and imprisonment in the county jail for up to a period of one year. Any
state civil service employee who intentionally engages in that conduct
must be disciplined as provided for by state law.(47)
In addition to all other
specified penalties, such a person is liable in an action for damages
brought against him or her by the injured party. The court may award punitive
damages where the acts of the offending party are proven to be malicious.
Where liability is established, the injured party is also entitled to
reasonable attorneys fees as provided by law. However, no action
for damages is available to the injured party unless that party has first
filed a complaint with the State Personnel Board (as provided for above)
and the Board has failed to reach a decision regarding any hearing conducted
pursuant to s. 19683.(48)
The Act also states that
the above provisions are
not intended to prevent an appointing power, manager or supervisor from
taking, directing others to take, recommending, or approving any personnel
action or from taking or failing to take a personnel action with respect
to any state employee or applicant for state employment if the appointing
power, manager or supervisor reasonably believes any action or inaction
is justified on the basis of evidence separate and apart from the fact
that the person has made a protected disclosure as defined in [s. 8547.2].(49)
In any civil action or administrative
proceeding, once it has been demonstrated by a preponderance of evidence
that an activity protected by the above law was a contributing factor
in retaliation against a former, current or prospective employee, the
burden of proof is on the supervisor, manager, or appointing power to
demonstrate by clear and convincing evidence that the alleged action would
have occurred for legitimate, independent reasons even if the employee
had not engaged in a "protected disclosure." If a supervisor,
manager, or appointing power fails to meet that burden of proof, the employee
has a complete affirmative defence in an adverse action against him or
her in any administrative review, challenge or adjudication where retaliation
has been demonstrated to be a contributing factor.(50)
The Act stipulates that
nothing in it shall be deemed to diminish the rights, privileges or remedies
of any employee under any other federal or state law or under any employment
contract or collective bargaining agreement.(51)
If the State Personnel Board
determines that there is a reasonable basis for an alleged violation,
or finds an actual violation, of the anti-retaliation provision, it must
transmit a copy of the investigative report to the State Auditor. All
working papers pertaining to the investigative report must be made available
under subpoena in a civil action brought pursuant to the relevant provision
of state law.(52)
The Act also has separate
anti-retaliatory provisions protecting employees of the University of
California and California State University who report "protected
disclosures" under the Act to designated university officers.(53)
In Connecticut, a provision
in the law pertaining to state agencies stipulates that:
Any person having knowledge of any matter involving corruption, unethical
practices, violation of state laws or regulations, mismanagement, gross
waste of funds, abuse of authority or danger to the public safety occurring
in any state department or agency, or any quasi-public agency, as defined
in section 1-120, or any person having knowledge of any matter involving
corruption, violation of state or federal laws or regulations, gross
waste of funds, abuse of authority or danger to the public safety occurring
in any large state contract, may transmit all facts and information
in his possession concerning such matter to the Auditors of Public Accounts.(54)
The section further provides
that the Auditors of Public Accounts shall review the matter and report
their findings and any recommendations to the Attorney General, who must
then make such investigations as he or she deems proper, being assisted
by the auditors. The Attorney General has the power to summon witnesses,
require the production of any necessary books, papers or other documents
and administer oaths of witnesses. He or she is normally required to report
his or her findings to the Governor or, in matters involving criminal
activity, to the Chief States Attorney. The Auditors of Public Accounts
and the Attorney General must not disclose the identity of a person giving
information without that persons consent, unless they determine
that such disclosure is unavoidable during the course of the investigation.(55)
The relevant provision also
states that no state officer or employee, no quasi-public agency officer
or employee, no officer or employee of a large state contractor and no
appointing authority shall take or threaten to take any personnel action
against any state or quasi-public agency employee or any employee of a
large state contractor in retaliation for such disclosure of information
to the Auditors of Public Accounts or the Attorney General. An employee
alleging that such action has been threatened or taken may, within 30 days
of learning of the specific incident, file an appeal with the Employees
Review Board or, if he or she is covered by a collective bargaining contract,
in accordance with the procedure it provides. An employee of a large state
contractor who alleges that such action has been threatened or taken may,
after exhausting all available administrative remedies, bring a civil
action in accordance with section 31-51m(c).(56)
An employee found to have
knowingly and maliciously made false charges under the above provision
is subject to disciplinary action by his or her appointing authority up
to and including dismissal. In the case of a state or quasi-public agency,
such action is subject to appeal to the Employees Review Board or,
if the employee is included in a collective bargaining contract, the procedure
On or before 1 September
annually, the Auditors of Public Accounts must submit to the clerk of
each House of the General Assembly a report stating the number of cases
in which facts and information have been transmitted to the Auditors pursuant
to the above provision during the preceding state fiscal year and how
each has been disposed of.(58)
Each contract between a
state or quasi-public agency and a large state contractor must provide
for cases where an officer, employee or appointing authority of such a
contractor takes or threatens to take any personnel action against any
employee of the contractor in retaliation for having disclosed information
to the Auditors of Public Accounts or the Attorney General under the above
provision. The contractor is liable for a civil penalty of not more than
$5,000 for each offence, up to a maximum of 20% of the value of the contract.
Each violation is considered to be a separate and distinct offence and
each calendar day on which the violation continues is deemed to be a separate
and distinct offence. The executive head of the state or quasi-public
agency may request the Attorney General to bring a civil action in the
Superior Court for the Judicial District of Hartford to seek imposition
and recovery of such civil penalty.(59)
Each large state contractor
is required to post a notice of the above provisions relating to large
state contractors in a conspicuous place where it is readily available
for viewing by its employees.(60)
As used in the above provisions,
"large state contract" means a contract of $5,000,000 or more,
between an entity and a state or quasi-public agency, except for a contract
for the construction, alteration or repair of any public building or public
work. A "large state contractor" means an entity that has entered
into a large state contract with a state or quasi-public agency.(61)
For purposes of the above
provisions, the definition of "state officers and employees"
is set out in s. 4-141 as follows:
officers and employees" includes every person elected or appointed
or employed in any office, position or post in the state government,
whatever such persons title, classification or function and whether
such person serves with or without remuneration or compensation, including
judges of probate courts and employees of such courts. In addition to
the foregoing, "state officers and employees" includes attorneys
appointed as victim compensation commissioners, attorneys appointed
by the Public Defenders Services Commission as public defenders, assistant
public defenders or deputy assistant public defenders, and attorneys
appointed by the court as special assistant public defenders, the Attorney
General, the Deputy Attorney General and any associate attorney general
or assistant attorney general, any other attorneys employed by any state
agency, any commissioner of the Superior Court hearing small claims
matters or acting as a fact-finder, arbitrator or magistrate or acting
in any other quasi-judicial position, any person appointed to a committee
established by law for the purpose of rendering services to the Judicial
Department including, but not limited to the Legal Specialization Screening
Committee, the State-Wide Grievance Committee, the Client Security Fund
Committee, and the State Bar Examining Committee, any member of a multidisciplinary
team established by the Commissioner of Children and Families pursuant
to section 17a-106a, and any physicians or psychologists employed by
any state agency. "State officers and employees" shall not
include any medical or dental intern, resident or fellow of the University
of Connecticut when (1) the intern, resident or fellow is assigned to
a hospital affiliated with the university through an integrated residency
program and (2) such hospital provides protection against professional
liability claims in an amount and manner equivalent to that provided
by the hospital to its full-time physician employees.
As well, for
purposes of the above provisions, a "quasi-public agency" is
defined in s. 1- 121 as follows:
agency" means the Connecticut Development Authority, Connecticut
Innovations Incorporated, Connecticut Health and Educational Facilities
Authority, Connecticut Higher Education Supplemental Loan Authority,
Connecticut Housing Finance Authority, Connecticut Housing Authority,
Connecticut Resources Recovery Authority, Connecticut Hazardous Waste
Management Service, Connecticut Coastline Port Authority, Capital City
Economic Development Authority and Connecticut Lottery Corporation.
In a provision
in Connecticuts labour law, protection is provided for both private
and public sector workers as follows:
No employer shall discharge, discipline or otherwise penalize any employee
because the employee, or a person acting on behalf of the employee,
reports, verbally or in writing, a violation or a suspected violation
of any state or federal law or regulation or any municipal ordinance
or regulation to a public body, or because an employee is requested
by a public body to participate in an investigation, hearing or inquiry
held by that public body, or a court action. No municipal employer shall
discharge, discipline or otherwise penalize any employee because the
employee, or a person acting on behalf of the employee, reports, verbally
or in writing, to a public body concerning the unethical practices,
mismanagement or abuse of authority by such employer. The provisions
of this subsection shall not be applicable when the employee knows that
such report is false.(62)
A "person" is
defined as one or more individuals, partnerships, associations, corporations,
business trusts, legal representatives or any organized group of persons.(63)
An "employer" is defined as a person engaged in business who
has employees, including the state and any political subdivision of the
state.(64) An "employee" is defined as a person engaged
in service to an employer in a business of his or her employer.(65)
The term "public body" has the following meaning:
any public agency, as defined in subsection (1) of section 1-200, or
any employee, member or officer thereof, or (B) any federal agency or
any employee, member or officer thereof.(66)
as referred to above, is defined in s. 1-200 as follows:
agency" or "agency" means any executive, administrative
or legislative office of the state or any political subdivision of the
state and any state or town agency, any department, institution, bureau,
board, commission, authority or official of the state or of any city,
town, borough, municipal corporation, school district, regional district
or other district or other political subdivision of the state, including
any committee of, or created by, any such office, subdivision, agency,
department, institution, bureau, board, commission, authority or official,
and also includes any judicial office, official or body or committee
thereof but only in respect to its or their administrative functions.
Another provision of Connecticuts
labour law states that an employee who is discharged, disciplined or otherwise
penalized by his or her employer in violation of the anti-retaliatory
provision cited above, may, after exhausting all available administrative
remedies, bring a civil action, within a specified time, for the reinstatement
of his or her previous job, payment of back wages and reestablishment
of employee benefits lost through such violation. This will be done in
the superior court for the judicial district where the violation is alleged
to have occurred or where the employer has its principal office.(67)
An employee found to have
knowingly made a false report is subject to disciplinary action by the
employer up to and including dismissal.(68)
The above provision is not
to be construed to diminish or impair the rights of a person under any
C. New Jersey
In New Jersey, employees
who blow the whistle, whether in the public or private sector, are protected
from retaliatory action by the same statutory provisions in the Conscientious
Employee Protection Act.(70)
The relevant provision states:
employer shall not take any retaliatory action against an employee because
the employee does any of the following:
Discloses, or threatens to disclose, to a supervisor or to a public
body an activity, policy or practice of the employer or another employer
with whom there is a business relationship, that the employee reasonably
believes is in violation of a law, or a rule or regulation promulgated
pursuant to law, or, in the case of an employee who is a licensed or
certified health care professional, reasonably believes constitutes
improper quality of patient care;
Provides information to, or testifies before, any public body conducting
an investigation, hearing or inquiry into any violation of law, or a
rule or regulation promulgated pursuant to law by the employer or another
employer with whom there is a business relationship, or, in the case
of an employee who is a licensed or certified health care professional,
provides information to, or testifies before, any public body conducting
an investigation, hearing or inquiry into the quality of health care;
Objects to, or refuses to participate in, any activity, policy or practice
which the employee reasonably believes:
is in violation of a law, or a rule or regulation promulgated pursuant
to law or, if the employee is a licensed or certified health care professional,
constitutes improper quality of patient care;
is fraudulent or criminal; or
is incompatible with a clear mandate of public policy concerning the
public health, safety or welfare or protection of the environment.(71)
For purposes of the Act,
the following definitions are relevant:
"Employer" means any individual, partnership, association,
corporation or any person or group of persons acting directly or indirectly
on behalf of or in the interest of an employer with the employers
consent and shall include all branches of State Government, or the several
counties and municipalities thereof, or any other political subdivision
of the State, or a school district, or any special district, or any
authority, commission, or board or any other agency or instrumentality
"Employee" means any individual who performs services for
and under the control and direction of an employer for wages or other
"Public body" means:
the United States Congress, and State legislature, or any popularly-elected
local governmental body, or any member or employee thereof;
any federal, State, or local judiciary, or any member or employee
thereof, or any grand or petit jury;
any federal, State, or local regulatory, administrative, or public
agency or authority, or instrumentality thereof;
any federal, State, or local law enforcement agency, prosecutorial
office, or police or peace officer;
any federal, State, or local department of an executive branch or
any division, board, bureau, office, committee, or commission of any
of the public bodies described in the above paragraphs of this subsection.
"Supervisor" means any individual with an employers
organization who has the authority to direct and control the work performance
of the affected employee, who has authority to take corrective action
regarding the violation of the law, rule or regulation of which the
employee complains, or who has been designated by the employer on the
notice required under section 7 of this Act.
"Retaliatory action" means the discharge, suspension or demotion
of an employee, or other adverse employment action taken against an
employee in the terms and conditions of employment.
"Improper quality of patient care" means, with respect to
patient care, any practice, procedure, action or failure to act of an
employer that is a health care provider which violates any law or any
rule, regulation or declaratory ruling adopted pursuant to law, or any
professional code of ethics.(72)
The Act states that protection
against retaliatory action for disclosure to a public body must not apply
to an employee unless the employee has first brought the relevant activity,
policy or practice to the attention of a supervisor by written notice
and has afforded the employer a reasonable opportunity to correct the
activity, policy or practice. Under the Act, where the situation is urgent,
such disclosure to the supervisor would not be required if the employee
was reasonably certain that the activity, policy or practice was known
to one or more supervisors or if the employee reasonably feared physical
harm as a result of the disclosure.(73)
If any of the provisions
of the Act are violated, an aggrieved employee or former employee may
institute a civil action in a court of competent jurisdiction, within
one year. Upon the application of any party, a jury trial must be directed
to try the validity of any claim under the Act specified in the suit.
All remedies available in common law tort actions are available to prevailing
plaintiffs and are in addition to any legal or equitable relief provided
by the above Act or any other statute. The court may also order:
An injunction to restrain continued violation of this Act;
The reinstatement of the employee to the same position held before the
retaliatory action, or to an equivalent position;
The reinstatement of full fringe benefits and seniority rights;
The compensation for lost wages, benefits and other remuneration;
The payment by the employer of reasonable costs, and attorneys
Punitive damages; or
An assessment of a civil fine of not more than $1,000.00 for the first
violation of the Act and not more than $5,000.00 for each subsequent
violation, which shall be paid to the State Treasurer for deposit in
the General Fund.(74)
A court may award reasonable
attorneys fees and court costs to an employer if it determines that
an action brought by an employee under the Act was without basis in law
or in fact.(75)
Another provision requires
that the employer conspicuously display notices of its employees
protections and obligations under the Act, and use other appropriate means
to keep its employees informed. Each posted notice must include the name
of the person(s) designated by the employer to receive written notifications
pursuant to the Act.(76)
Finally, the Act stipulates
that nothing in it shall be deemed to diminish the rights, privileges
or remedies of any employee under any other federal or State law or regulation
or under any collective bargaining agreement or employment contract, except
that the institution of an action in accordance with the Act shall be
deemed a waiver of the rights and remedies available under any other contract,
collective bargaining agreement, State law, rule or regulation or under
the common law.(77)
D. New York
In New York State, the relevant
legislative provision protecting public sector whistleblowers states as
follows in paragraph (a):
A public employer shall not dismiss or take other disciplinary or other
adverse personnel action against a public employee regarding the employees
employment because the employee discloses to a governmental body information:
(i) regarding a violation of a law, rule or regulation which violation
creates and presents a substantial and specific danger to the public
health or safety; or (ii) which the employee reasonably believes to
be true and reasonably believes constitutes an improper governmental
action. "Improper governmental action" shall mean any action
by a public employer or employee, or an agent of such employer or employee,
which is undertaken in the performance of such agents official
duties, whether or not such action is within the scope of his employment,
and which is in violation of any federal, state or local law, rule or
Paragraph (b) of the same
provision states that, prior to disclosing information pursuant to paragraph
(a), an employee must have made a good effort to provide the appointing
authority with the information and to have given it a reasonable time
to take appropriate action unless there is imminent and serious danger
to public health or safety. An employee who acts pursuant to paragraph
(b) is deemed to have disclosed information to a governmental body under
The following are the relevant
definitions for purposes of the above provision:
For the purposes of this section, the term:
"Public employer" or "employer" shall mean (i) the
State of New York, (ii) a county, city, town, village or any other political
subdivision or civil division of the state, (iii) a school district
or any governmental entity operating a public school, college or university,
(iv) a public improvement or special district, (v) a public authority,
commission or public benefit corporation, or (vi) any other public corporation,
agency, instrumentality or unit of government which exercises governmental
power under the laws of the state.
"Public employee" or "employee" shall mean any person
holding a position by appointment or employment in the service of a
public employer except judges or justices of the unified court system
and members of the legislature.
"Governmental body" shall mean (i) an officer, employee, agency,
department, division, bureau, board, commission, council, authority
or other body of a public employer, (ii) employee, committee, member,
or commission of the legislative branch of government, (iii) a
representative, member or employee of a legislative body of a county,
town, village or any other political subdivision or civil division of
the state, (iv) a law enforcement agency or any member or employee of
law enforcement agency, or (v) the judiciary or any employee of the
"Personnel action" shall mean an action affecting compensation,
appointment, promotion, transfer, assignment, reassignment, reinstatement
or evaluation of performance.(79)
An employee subject to dismissal
or other disciplinary action under a final and binding arbitration provision,
or other disciplinary procedure in a collectively negotiated agreement,
or under provision of New York State or local law, may assert as a defence
before the designated arbitrator or hearing officer that he or she reasonably
believes the disciplinary action would not have been taken but for the
whistleblowing. The merits of this argument must be determined as part
of the arbitration award or hearing officer decision. If there is a finding
that the disciplinary action was based solely on employer violation of
the anti-retaliation provision, the arbitrator or hearing officer must
dismiss or recommend dismissal of the disciplinary proceeding. If appropriate,
the employee will be reinstated with back pay, or, in the case of an arbitration
procedure, may take other action permitted in the collective agreement.(80)
An employee whose collective
agreement prohibits the employer from taking adverse retaliatory personnel
actions and provides for a final and binding arbitration to resolve alleged
violations of such provisions, may assert before the arbitrator that he
or she reasonably believes that the action would not have been taken but
for the whistleblowing. If the arbitrator determines the adverse personnel
action was based on a violation by the employer of the anti-retaliatory
provision, he or she may take such remedial action as is permitted by
the collective agreement.(81) Where
an employee is not subject to the above provision, he or she may commence
an action in a court of competent jurisdiction under specified terms and
Finally, the legislation
provides that nothing in these provisions shall diminish or impair the
rights of a public employee or employer under any law, rule, regulation
or collective agreement or prohibit any personnel action that would have
been taken regardless of the disclosure of information.(83)
(1) 29 U.S.C.A., s. 660(c).
(2) 29 U.S.C.A., s. 215-216.
(3) 29 U.S.C.A., s. 623(d), 631(a).
(4) 15 U.S.C.A., s. 2622.
(5) 33 U.S.C.A., s. 1367.
(6) 42 U.S.C.A., s. 7622.
(7) The Act appears at 5 U.S.C.A., ss. 1201-1222 and 2302.
Portions of the following summary of the Act are based on the discussion
in: Ontario, Law Reform Commission, Report on Political Activity, Public
Comment and Disclosure by Crown Employees, 1987, at pp. 235-242.
(8) 5 U.S.C.A., s. 7701. Such an appeal may also allege
other forms of "prohibited personnel practices," such as discrimination
on the grounds of age, race or sex (s. 2302(b)(1)).
(9) Whistleblowing protection may be provided as a matter
of contract. Many collective agreements governing federal public employees
incorporate by reference as a term of the agreement the protections established
by the CSRA. Other collective agreements reproduce the specific language
of the anti-retaliation provision contained in the CSRA (i.e., 5 U.S.C.A.,
(10) 5 U.S.C.A., s. 1212.
(11) 5 U.S.C.A., s. 2302(a)(2)(B).
(12) 5 U.S.C.A., s. 2302(a)(2)(C).
(13) 5 U.S.C.A., s. 2302(b)(8).
(14) 5 U.S.C.A., s. 2302(a)(2)(A).
(15) 5 U.S.C.A., s. 2302(b)(8)(A).
(16) Under the Inspector General Act of 1978, P.L.
95-492, 92 Stat. 1101 (1978) as amended, Congress created a mechanism
for the establishment within each agency of government of an "Inspector
General" who would be charged with the internal investigation of
complaints and allegations made by employees of that agency.
(17) 5 U.S.C.A., s. 2302(b)(8)(B).
(18) "Report of the Office of the Comptroller General,"
in Hearings before the Subcommittee on Civil Service of the Committee
on Post Office and Civil Service, House of Representatives, 1st Session,
99th Congress (1985), Serial No. 99-19, pp. 30-31, as cited in: Ontario,
Law Reform Commission, Report on Political Activity, Public Comment
and Disclosure by Crown Employees, 1986, at p. 238.
(19) 5 U.S.C.A., s. 1213(h).
(20) 5 U.S.C.A., s. 1213(c)(1).
(21) 5 U.S.C.A., s. 1213(d).
(22) 5 U.S.C.A., s. 1213(i).
(23) 5 U.S.C.A., s. 1213(e)(1).
(25) 5 U.S.C.A., s. 1213(e)(2).
(26) 5 U.S.C.A., s. 1213(e)(3).
(27) 5 U.S.C.A., s. 1213(e)(4).
(28) 5 U.S.C.A., s. 1219(a).
(29) 5 U.S.C.A., s. 1219(b).
(30) 5 U.S.C.A., s. 1214(b)(2)(B).
(31) 5 U.S.C.A., s. 1214(b)(2)(C).
(32) 5 U.S.C.A., s. 1221(e)(1).
(33) 5 U.S.C.A., s. 1221(e)(2).
(34) For further details, see, for example: Daniel P.
Westman, The Law of Retaliatory Discharge, Bureau of National Affairs
Inc., Washington, 1991, Chapters 3 and 4. Appendices 3 and 4 to the book
summarize the state statutes that protect whistleblowers in the public
and private sectors; Marcia Miceli and Janet P. Near, Blowing the Whistle,
Lexington Books, 1992, Table 6-2.
(35) Wests Annotated California Codes, Government
Code, ss. 8547-8547.12
(36) Ibid., s. 8547.1.
(37) Ibid., s. 8547.2.
(38) Ibid., s. 8547.3.
(39) Ibid., s. 8547.4.
(40) Ibid., s. 8547.5.
(41) Ibid., s. 8547.6.
(42) Ibid., s. 8547.7(a).
(43) Ibid., s. 8547.7(b).
(44) Ibid., s. 8547.7(c).
(45) Ibid., s. 8547.7(d).
(46) Ibid., s. 8457.8(a).
(47) Ibid., s. 8547.8(b).
(48) Ibid., s. 8547.8(c).
(49) Ibid., s. 8547.8(d).
(50) Ibid., s. 8547.8(e).
(51) Ibid., s. 8547.8(f).
(52) Ibid., s. 8547.9.
(53) Ibid., s. 8547.10 - 8547.12
(54) Connecticut General Statutes Annotated, s. 4-61dd(a).
(56) Ibid., s. 4-61dd(b).
(57) Ibid., s. 4-61dd(c).
(58) Ibid., s. 4-61dd(d).
(59) Ibid., s. 4-61dd(e).
(60) Ibid., s. 4-61dd(f).
(61) Ibid., s. 4-61dd(g).
(62) Ibid., s. 31-51m(b).
(63) Ibid., s. 31-51m(a)(1).
(64) Ibid., s. 31-51m(a)(2).
(65) Ibid., s. 31-51m(a)(3).
(66) Ibid., s. 31-51m(a)(4).
(67) Ibid., s. 31-51m(c).
(69) Ibid., s. 31-51m(d).
(70) New Jersey Statutes Annotated, Title 34, ss. 34:19-1
(71) Ibid., s. 34:19-3.
(72) Ibid., s. 34: 19-2.
(73) Ibid., s. 34:19-4.
(74) Ibid., s. 34:19-5.
(75) Ibid., s. 34:19-6.
(76) Ibid., s. 34:19.7.
(77) Ibid., s. 34:19.8.
(78) New York Consolidated Laws Service, Civil Service
Law, s. 75-b(2)(a).
(79) Ibid., s. 75-b(1).
(80) Ibid., s. 75-b(3)(a).
(81) Ibid., s. 75-b(3)(b).
(82) Ibid., s. 75-b(3)(c).
(83) Ibid., s. 75-b(4).