Whistleblower protection in United States
Encyclopedia
Whistleblower Protection provides freedom of speech for workers and contractors in certain situations. Laws, like the Ethics in Government Act
, cannot be enforced if free speech is not protected for individuals that report corruption or crime in the workplace. The difficulty with free speech is that work-related information associated with Classified information in the United States
can have a negative impact on national security
and United States public debt
. A Non-disclosure agreement
creates similar conflicts in private business.
Federal workers are entitled to financial benefits, so a whistle-blower action should include a beneficial suggestion to reserve the right to potential financial compensation for job-related improvement suggestions.
Private companies and non-profit organizations benefit when whistle-blower protection is included in company policies and bylaws. Fines, penalties, and lawsuits may be avoided when immunity is granted to any employee that notifies an owner or member of the board of directors when other employees or managers become involved in unethical or illegal activity on behalf of the organization.
Workers must assert their rights to obtain any kind of protection.
Some basic law is needed to understand how to perform a whistle-blower disclosure.
should be consulted to provide the skills necessary to deal with any concerns related to law
. Some assistance can be found at the following locations.
Law
falls into two broad categories.
The U.S. Office of Independent Council provides training.
Constitutions law is modified by common law through the judicial process.
The original issue associated with this the False Claims Act involved defective cannons that would blow up and kill people during the Civil War. The first contractor audit services were established shortly afterward. Defense Contract Administration Service was established in 1956 to consolodate resources. Most of this has been reorganized under Defense Logistics Agency
.
Fraud still occurs despite this oversight.
Private citizens purse whistle-blower actions under the False Claims Act when these safeguards fail.
The False Claims Act (aka: the Lincoln Law)
offers compensation and limited protection for workers that provide tips about defective products and services delivered to the U.S. government. This prohibits firing the employee that provided the tip and provides some financial compensation to the employee responsible for the tip. Statute of limitations may span 6 years.
The False Claims Act provides civil remedies for non-government workers. Qui tam
is a provision under the False Claims Act that allows private individuals to sue on behalf of the government. Separate remedies are available for government workers.
The Taxpayers Action Fraud Education Fund provides access to educational resources.
Government workers that experience retaliation as a result of whistle-blower retaliation must purse defense against those actions under the authority of the Civil Service Reform Act
. This establishes the following organizations to manage the federal workforce within the executive branch of government. This covers most of the 3 million federal workers within the United States.
The MSPB is a quasi-judicial organization with enforcement authority for prohibited personnel actions. MSPB is also responsible for reimbursing legal fees in some situations.
Issues that involve discrimination and harassment are pursued by the Equal Employment Opportunity Commission. This may include failure to accommodate disability in addition to more obvious situations that may involve gender or race.
Other remedies may be available if a federal worker is unable to return to work. Employees with over 5 years government service may be eligible for early retirement if medical records support a finding of disability not accommodated in accordance with the Rehabilitation Act of 1973. Retirement rules are listed in the OPM Retirement Settlement Guide. Early retirement due to medical disability affects about 100,000 federal workers every year, and there are two retirement systems.
The FLRA is an independent administrative federal agency covering certain collective bargaining rights (unions). Postal employee collective bargaining is covered by the Postal Reorganization Act
under the United States Postal Service
.
The U.S. Office of Government Ethics is the supervising ethics office for the executive branch.
Supervising ethics offices for other branches of government are as follows.
The Ethics in Government Act
provides three protections that apply to whistle-blowers.
The U.S. (OIC) deals with ethics rules that cover all government employees and the OIC is responsible for documenting the whistle-blower process.
One whistle-blower caution is that political activity is prohibited by government employees. Whistle-blower contact with elected or appointed officials must include no references to political support, political opposition, and campaigns.
The other caution is that whistle-blowers that must leave government employment have time limits that prohibit employment by entities where the government employee was responsible for any contractual interactions, The former government employee may be prohibited from interacting in an official capacity directly with former coworkers still employed by the government.
The Lloyd–La Follette Act states that "the right of employees ... to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." This legislation prohibits payroll compensation for managers that retaliate against employees that attempt to provide whistle-blower disclosure (pay to the manager is suspended).
The intent is to provide direct feedback to Congress from federal employees, most of whom work within the executive branch.
This does not provide protections for employees that violate disclosure rules associated with unauthorized classified information disclosure
and other types of unauthorized public disclosure associated with issues like law enforcement investigation and juvenile records. Unauthorized disclosures of classified information is prohibited, so job-specific issues should be disclosed to the appropriate legislative committee, where members should hold the appropriate clearance.
As a general rule, Lloyd-La Follette disclosures should cover a topic that will benefit the government if the issue could be resolved by congressional involvement when the resolution would not be supported as a beneficial suggestion and would be opposed by management.
Some congressional contacts are as follows.
The Whistleblower Protection Act
supposedly protects government employees from management retaliation, but the Supreme Court has ruled this protection only applies to government workers when the disclosure is not directly related to the job.
This is the first protection made available to protect free speech rights for federal workers that can otherwise be fired for reporting corruption.
While not necessarily protected by the Whistleblower Protection Act, private employers should be prohibited from firing workers after the worker has disclosed criminal activity to organizations like OSHA, EPA, SEC, FBI, or other similar organizations (False Claims Act).
Whistleblower Protection does not always protect federal workers. The Supreme Court ruling excludes whistle-blower actions covered in the job description
for federal workers. Job related issues must go through the hierarchy of the organization. When that fails, the issue must be brought to the attention of MSPB, EEOC, or OPM if it impacts employment. Unclassified issues not directly related to the job that do not have a negative impact on national security or law enforcement may be suitable for public disclosure. Public disclosure would obviously cover things like sexual harassment, racism, stalking, slander, and pesticide exposure if you are not employed as an exterminator.
Issues that impact the organization beyond the employee should be disclosed to one the following.
The No Fear Act discourages federal managers and supervisors from engaging in unlawful discrimination and retaliation. The main purpose is to pay awards for discrimination and retaliation violations out of the agency budget. Employer obligations under the No FEAR Act are as follows (requires annual training).
The Sarbanes-Oxley Act
establishes mandatory whistle-blower disclosures under certain circumstances with criminal penalties if mandated reporters fail to disclose. This requires registration and accurate reporting for funding instruments, like stocks and bonds used to finance private industry. Some corporate officers are required to report irregularities (mandated reporters).
Whistle-blower disclosures involving securities and finance should be made to the Securities and Exchange Commission, the state attorney general, or the local District attorney
.
The Freedom of Information Act can provide access to information required to pursue a whistle-blower action.
As an example, the use of hazardous chemicals must be disclosed to employees, such as pesticides. Injury due to hazardous chemical exposure, radiation, and other hazards permanently disable 100,000 federal workers each year. Notification of hazardous chemical exposure is also required by Right to know
. FIFRA requires pest control professionals to maintain records for at least 2 years, and records maintained by government employees and contractors must be made available to the public upon request.
Federal employers, like Department of Defense, are self-policing and not subject to over-site by OSHA and EPA. Managers operating outside OSHA and EPA lack education and training so lack competency required to avoid workplace injuries.
Right to know
is necessary for workplace safety involving things like chemical injury
, radiation injury and other occupational illnesses where the cause may not be discovered by physicians without disclosures that are required by law. Workplace hazards must be prominently displayed and public hazards must be disclose to state and county agencies.
A FOIA request is the most valuable law that supports Whistleblower actions when a Right to know violation has occurred. This kind of request cannot be made anonymously and fees may be required. There may be an advantage if the request is made through an unrelated individual, such as a union official or another member of the community.
Right to know is just one example of many reasons why an FOIA request may be needed to pursue a whistle-blower action.
FOIA requests begin at the following sites.
Organizations within the executive branch usually provide simplified information to clarify public law for managers and workers.
Individuals that have a mandate to uphold law and public policy include the following.
Other organizations that provide similar information are as follows.
Senior officers that fail to act on information regarding crime or incompetence are subject to permanent reduction in rank or court martial
so must act on Whistleblower information. Civilians that occupy senior pay grades have similar requirements and restrictions.
States are organized in much the same way, and executive orders are issued by governors.
Financial irregularities involving Misappropriation
is one area where criminal penalties apply to federal managers. Funds allocated by congress for one purpose may not be spent for a different purpose, including payroll. The U.S. Navy provides an example.
Title 18, United States Code, Section 1001 establishes criminal penalties for false statements. This applies to false statements exchanged between any two federal employees, which includes managers, appointed officials, and elected officials.
Criminal penalties also apply when crimes occur in the workplace, as is often the case with an injury. For example, illness after workplace exposure to hazardous substances requires access to the Material safety data sheet
and Workers compensation for medical evaluation. Failure to post mandatory information is a crime.
Retaliation remedies are limited to withholding payroll from the manager and civil remedies that involve the Civil Service Reform Act
.
State laws are also applicable to federal workers, and California provides an example.
Workers will often prevail if some kind of law or public policy can be used to justify a dispute. When a dispute goes to grievance, then laws and policies need to be cited, otherwise the dispute may fail. The following resources may help.
United States labor practices and related laws are covered in the following.
State laws are also applicable to all workers (including federal workers).
The following is applicable specifically to federal workers.
One of the more serious concerns is workplace safety, and failure to satisfy building codes established by the International Code Council
can have a negative impact on occupational safety. Buildings constructed before 1990 probably do not satisfy these requirements.
As an example, government managers are often incompetent and may not recognize the reason for elevated illness rates when fresh air ventilation for the building is shut down. The building no longer satisfies OSHA laws and building codes without fresh air. EPA recommends fresh air exchange of no less than 15 cfm/person to prevent accumulation of toxic chemicals in the air, like the carbon dioxide that is exhaled in human breath. Inadequate fresh air will cause illness or death due to excess buildup of toxic gasses inside buildings.
Building codes applicable to most areas of the United States are as follows.
applies to common law, and this obligates judges to respect the precedents established by prior decisions made by other courts.
Common law is established in two bodies.
Issues that involve federal agencies apply to federal courts, and federal courts must observe laws established within the state in which that federal agency operates.
State courts apply only to state government, however, state courts have an obligation to observe common law established at the federal level, in addition to observing federal law that are not modified by state laws.
It is important to note that proof is often required to substantiate the credibility of whistle-blower complaints, but state and federal law may prohibit photographs, pictures, and video that are the most important types of proof.
Legal disputes can be handled in two different forums.
Court
Labor disputes for private employees that go to court usually begin at the county or state. Labor disputes involving federal workers begin in federal court.
Garcetti v. Ceballos
is a decision that indicates that first amendment protection for free speech does not apply to situations that fall within the scope of the job description
associated with the employment of each individual government worker. The Supreme Court decision means that government management may discipline government employees that disclose crime and incompetence under certain circumstances.
Job related functions are supposed to be disclosed to management by grievance
(usually through the union), to the Inspector General
, to the [Office of Special Council], to appointed officials, or to elected officials. This is counterproductive when the employer has violated the law, and agencies responsible for enforcement actions are often not funded.
Issues that exist outside the job-description are not prohibited by Garcetti v. Ceballos. Public disclosure of the work environment not related to work assignments do not compromise essential functions like national security and law enforcement. In theory, criminal penalties apply to managers that discipline employees for public disclosure of situations outside the job description.
The following are some examples of situations outside the job description.
Even though EPA and OSHA may provide no direct services for government workers, a report should be filed.
Senior executives and military officers at the rank Colonel/Captain or above have an obligation to act on Whistleblower information.
Financial or business irregularities may be reported to the U.S. Securities and Exchange Commission, Attorney General
, District Attorney
, Secret Service
, Federal Bureau of Investigation
, or other law enforcement agency.
One caution is that government employees can be imprisoned indefinitely without trial based on hear-say from coworkers, so whistle-blower reporting cannot be done casually. If the information that is being reported is classified, then the recipient must have a need-to-know and the recipient must hold a security clearance
. The need-to-know criteria generally means that the issue that is being disclosed will benefit the government if the dispute is resolved. A dispute that does not provide a benefit to the government is more appropriate for a labor dispute.
Government ethics laws are a complicated maze with unpredictable combinations. As an example, any business interests and tax records for a public employee is public domain because disclosure is required by the Ethics Reform Act of 1989 and this information must be made available to anyone that requests that information because of the Freedom of Information Act
. This applies to all government employees, including elected and political appointments.
Federal employment is governed by the Merit Promotion Protection Board. This applies to positions that are not filled by election or appointment.
Employees working for private companies are protected under the Americans with Disabilities Act. Federal employees are covered by the Rehabilitation Act of 1973, which offers inferior protection.
Workers that report crime or incompetence may get injured while at work. Federal workers, energy workers, long shoremen, and coal workers injured at work must contact US Department of Labor, Office of Workers Compensation.
The whistle-blower must understand the labor dispute process because union leadership may be corrupt.
The employee must initiate a labor dispute to protect their employment rights when reprisal occurs after a whistle-blower disclosure. Employee rights are protected by Labor law in the United States. These rights are not automatically guaranteed if the employee fails to start the process in a timely manner.
Employees with no collective bargaining organization are directly represented by state labor boards, unemployment offices, and the Equal Employment Opportunity Commission. This describes employees where no union steward is available at the work-site.
The dispute must be disclosed to the employer. If there is a union contract, then the process described in the contract should be followed. If there is no union agreement then a disagreement with the employer should be discussed directly with government organizations that provides employee protection for the area of the disagreement. A labor dispute that progresses beyond words begins with a grievance.
When an employee grievance prevails, the lower level supervisors that were involved in the dispute may be temporarily prohibited from promotion. Manager pay may be suspended in situations where there was a whistleblower reprisal or other crime. This provides a manager incentive to use unethical tactics to prevail. The employee must ensure the nature of the dispute is factual, justified, and substantiated.
A grievance should include the following.
The original grievance is given to the first level manager and a copy is kept (immediate supervisor). If there is a union, then a copy should be given to a member of the union leadership team. If the manager reply is unacceptable, then the grievance is updated, attached to copies of the original, and given to the manager that supervises of the first level manager (second level supervisor). This continues from manager to manager upward through the organization. The time allowed for each manager response is usually 30 days. The time allowed for the employee response is usually 7 days. The nature of the complaint may expand to include further information at each step.
When an employee dispute involves an employer that is a member of a collective bargaining unit then the grievance process is described in the collective bargaining agreement. U.S. Code Title 5 Section 7121 for federal workers provides an example framework.
If no resolution is achieved at the top level for the local organization, or if the process takes too long, then the process is brought to the attention of the appropriate government organization.
Collective bargaining protects the employer as much as the employee. The grievance process described above provides time for the employer to correct situations that violate ethics rules or laws before enforcement action becomes necessary. Federal employees that are members of a union are generally restricted to binding arbitration. Employees not limited to binding arbitration may sue in court.
When there is no labor union or if the union dispute process has produced no productive results, or if the process takes too long, then the issue is provided to the National Labor Review Board, Equal Employment Opportunity Commission, the Merit Promotion Protection Board, the Inspector General, Senator, Representative, the President, the Department of Justice, the Industrial Accidents Board, or other organization. A copy should be mailed to the officer or senior executive in charge of the top level managers in the local organization because other employees may interfere with regular delivery.
A grievance needs to cite an issue involving [tort|tort law], common law
, or [crime|public law] to be effective. There is no obligation for any enforcement action for issues that do not violate law. Failure to provide pay for hours worked, criminal activity, dangerous activity, assault, failure to provide time for meals/breaks, failure to provide safe working conditions, hostile work environment (harassment), and failure to accommodate handicap are common reasons for employee complaints.
in some areas if state laws require time for employee breaks and meals
. Government employees are at greater risk of serious abuse by managers due to unequal protection.
The state labor board should be consulted for more information.
One word of caution is that Fifth Amendment protection may be lost if the employee answers questions, and it is necessary to reassert this right during the meeting after answering any questions. The meeting may involve very little conversation after the employee has asserted their constitutional rights and demanded the details of the accusation.
The employee must also assert their rights. Department of Labor should be consulted for more information.
Employees must assert additional rights when ordered to attend a meeting that may involve any type of dispute. There is nothing that requires an employee to provide any information during a meeting if the topic involves a labor dispute, but the employee is entitled to be told the specific nature of any possible dispute. The following should be demanded.
Employees must never make false statements during any meeting, and meeting participants risk fine or prison when false statements are made when a federal worker is present. False statements made in the presence of a federal employee is a crime, and this includes any statement made during an official meeting at a federal facility. Some states may have similar laws.
A court order may be required for telephone voice recording in some areas. Ordinary voice recording in some areas, such as California, requires consent of all parties before the recording can be used in a courtroom or during arbitration. Most meeting minutes are documented in writing by all parties, and the minutes are signed and dated at the end of the meeting.
The employees must request the specific nature of any accusation under the Sixth Amendment with the assumption that an unresolved dispute will be decided in a courtroom under the protections provided by the Seventh Amendment. Employees cannot be compelled to answer questions about potential crimes under the assumption that all such questions fall under the protection of the Fifth Amendment. No employee may be denied these protections for any reason. The specific constitutional protections are as follows.
Ethics in Government Act
The Ethics in Government Act of 1978 is a United States federal law that was passed in the wake of the Nixon Watergate scandal and the Saturday Night Massacre. It created mandatory, public disclosure of financial and employment history of public officials and their immediate family...
, cannot be enforced if free speech is not protected for individuals that report corruption or crime in the workplace. The difficulty with free speech is that work-related information associated with Classified information in the United States
Classified information in the United States
The United States government classification system is currently established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the...
can have a negative impact on national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
and United States public debt
United States public debt
The United States public debt is the money borrowed by the federal government of the United States at any one time through the issue of securities by the Treasury and other federal government agencies...
. A Non-disclosure agreement
Non-disclosure agreement
A non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
creates similar conflicts in private business.
Federal workers are entitled to financial benefits, so a whistle-blower action should include a beneficial suggestion to reserve the right to potential financial compensation for job-related improvement suggestions.
Private companies and non-profit organizations benefit when whistle-blower protection is included in company policies and bylaws. Fines, penalties, and lawsuits may be avoided when immunity is granted to any employee that notifies an owner or member of the board of directors when other employees or managers become involved in unethical or illegal activity on behalf of the organization.
Workers must assert their rights to obtain any kind of protection.
Some basic law is needed to understand how to perform a whistle-blower disclosure.
Law
References to laws provided here are just an overview. A lawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
should be consulted to provide the skills necessary to deal with any concerns related to law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Some assistance can be found at the following locations.
Law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
falls into two broad categories.
- Public lawPublic lawPublic law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
- Common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
Public Law
Public law consists of constitutional law, administrative law and criminal law.The U.S. Office of Independent Council provides training.
Constitutional Law
Constitutional law is the body of law generally composed of the constitution (state and federal) as well as any laws established by the executive and legislative branches of government composed of president, governors, representatives, and senators.Constitutions law is modified by common law through the judicial process.
False Claims Act
The original issue associated with this the False Claims Act involved defective cannons that would blow up and kill people during the Civil War. The first contractor audit services were established shortly afterward. Defense Contract Administration Service was established in 1956 to consolodate resources. Most of this has been reorganized under Defense Logistics Agency
Defense Logistics Agency
The Defense Logistics Agency is an agency in the United States Department of Defense, with more than 26,000 civilian and military personnel throughout the world...
.
Fraud still occurs despite this oversight.
Private citizens purse whistle-blower actions under the False Claims Act when these safeguards fail.
The False Claims Act (aka: the Lincoln Law)
False Claims Act
The False Claims Act is an American federal law that imposes liability on persons and companies who defraud governmental programs. The law includes a "qui tam" provision that allows people who are not affiliated with the government to file actions on behalf of the government...
offers compensation and limited protection for workers that provide tips about defective products and services delivered to the U.S. government. This prohibits firing the employee that provided the tip and provides some financial compensation to the employee responsible for the tip. Statute of limitations may span 6 years.
The False Claims Act provides civil remedies for non-government workers. Qui tam
Qui tam
In common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed...
is a provision under the False Claims Act that allows private individuals to sue on behalf of the government. Separate remedies are available for government workers.
The Taxpayers Action Fraud Education Fund provides access to educational resources.
Civil Service Reform Act of 1978
Government workers that experience retaliation as a result of whistle-blower retaliation must purse defense against those actions under the authority of the Civil Service Reform Act
Civil Service Reform Act of 1978
The Civil Service Reform Act of 1978, , reformed the civil service of the United States federal government.The Civil Service Reform Act of 1978 abolished the U.S...
. This establishes the following organizations to manage the federal workforce within the executive branch of government. This covers most of the 3 million federal workers within the United States.
- Merit Systems Protection Board (MSPB)
- Office of Personnel Management (OPM)
- Federal Labor Relations Authority (FLRA)
The MSPB is a quasi-judicial organization with enforcement authority for prohibited personnel actions. MSPB is also responsible for reimbursing legal fees in some situations.
Issues that involve discrimination and harassment are pursued by the Equal Employment Opportunity Commission. This may include failure to accommodate disability in addition to more obvious situations that may involve gender or race.
Other remedies may be available if a federal worker is unable to return to work. Employees with over 5 years government service may be eligible for early retirement if medical records support a finding of disability not accommodated in accordance with the Rehabilitation Act of 1973. Retirement rules are listed in the OPM Retirement Settlement Guide. Early retirement due to medical disability affects about 100,000 federal workers every year, and there are two retirement systems.
The FLRA is an independent administrative federal agency covering certain collective bargaining rights (unions). Postal employee collective bargaining is covered by the Postal Reorganization Act
Postal Reorganization Act
The Postal Reorganization Act of 1970 abolished the United States Post Office Department, a part of the cabinet, and created the United States Postal Service, a corporation-like independent agency with an official monopoly on the delivery of mail in the United States. was signed by President...
under the United States Postal Service
United States Postal Service
The United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
.
Ethics in Government Act
The U.S. Office of Government Ethics is the supervising ethics office for the executive branch.
Supervising ethics offices for other branches of government are as follows.
- Senate Select Committee on Ethics
- House Committee on Standards of Official Conduct
- Judicial Conference Committee on Codes of Conduct
The Ethics in Government Act
Ethics in Government Act
The Ethics in Government Act of 1978 is a United States federal law that was passed in the wake of the Nixon Watergate scandal and the Saturday Night Massacre. It created mandatory, public disclosure of financial and employment history of public officials and their immediate family...
provides three protections that apply to whistle-blowers.
- Mandatory, public disclosure of financial and employment history of public officials and their immediate family.
- Restrictions on lobbying efforts by public officials for a set period of time after leaving public office.
- Creates the U.S. Office of Independent Counsel (OIC) to investigate government officials.
The U.S. (OIC) deals with ethics rules that cover all government employees and the OIC is responsible for documenting the whistle-blower process.
One whistle-blower caution is that political activity is prohibited by government employees. Whistle-blower contact with elected or appointed officials must include no references to political support, political opposition, and campaigns.
The other caution is that whistle-blowers that must leave government employment have time limits that prohibit employment by entities where the government employee was responsible for any contractual interactions, The former government employee may be prohibited from interacting in an official capacity directly with former coworkers still employed by the government.
Lloyd–La Follette Act
The Lloyd–La Follette Act states that "the right of employees ... to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." This legislation prohibits payroll compensation for managers that retaliate against employees that attempt to provide whistle-blower disclosure (pay to the manager is suspended).
The intent is to provide direct feedback to Congress from federal employees, most of whom work within the executive branch.
This does not provide protections for employees that violate disclosure rules associated with unauthorized classified information disclosure
Classified information in the United States
The United States government classification system is currently established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the...
and other types of unauthorized public disclosure associated with issues like law enforcement investigation and juvenile records. Unauthorized disclosures of classified information is prohibited, so job-specific issues should be disclosed to the appropriate legislative committee, where members should hold the appropriate clearance.
As a general rule, Lloyd-La Follette disclosures should cover a topic that will benefit the government if the issue could be resolved by congressional involvement when the resolution would not be supported as a beneficial suggestion and would be opposed by management.
Some congressional contacts are as follows.
- Senate Home Page
- Senate Leadership
- Committee Office Websites (house of representatives)
- House Home Page
- House Leadership Offices
- House Organizations, Commissions, and Task Forces
- Office of Inspector General (house of representatives)
- Office of the Clerk (house of representatives)
- Congressional Budget Office (CBO)
- Government Accountability Office (GAO)
- Medicare Payment Advisory Commission
Whistleblower Protection Act
The Whistleblower Protection Act
Whistleblower Protection Act
-Whistleblower Protection Act of 1989:The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct...
supposedly protects government employees from management retaliation, but the Supreme Court has ruled this protection only applies to government workers when the disclosure is not directly related to the job.
This is the first protection made available to protect free speech rights for federal workers that can otherwise be fired for reporting corruption.
While not necessarily protected by the Whistleblower Protection Act, private employers should be prohibited from firing workers after the worker has disclosed criminal activity to organizations like OSHA, EPA, SEC, FBI, or other similar organizations (False Claims Act).
Whistleblower Protection does not always protect federal workers. The Supreme Court ruling excludes whistle-blower actions covered in the job description
Job description
A job description is a list that a person might use for general tasks, or functions, and responsibilities of a position. It may often include to whom the position reports, specifications such as the qualifications or skills needed by the person in the job, or a salary range...
for federal workers. Job related issues must go through the hierarchy of the organization. When that fails, the issue must be brought to the attention of MSPB, EEOC, or OPM if it impacts employment. Unclassified issues not directly related to the job that do not have a negative impact on national security or law enforcement may be suitable for public disclosure. Public disclosure would obviously cover things like sexual harassment, racism, stalking, slander, and pesticide exposure if you are not employed as an exterminator.
Issues that impact the organization beyond the employee should be disclosed to one the following.
- Department of Agriculture (USDA)
- Department of Commerce (DOC)
- Department of Defense (DOD)
- Department of Education (ED)
- Department of Energy (DOE)
- Department of Health and Human Services (HHS)
- Department of Homeland Security (DHS)
- Department of Housing and Urban Development (HUD)
- Department of Justice (DOJ)
- Department of Labor (DOL)
- Department of State (DOS)
- Department of the Interior (DOI)
- Department of the Treasury
- Department of Transportation (DOT)
- Department of Veterans Affairs (VA)
No FEAR Act
The No Fear Act discourages federal managers and supervisors from engaging in unlawful discrimination and retaliation. The main purpose is to pay awards for discrimination and retaliation violations out of the agency budget. Employer obligations under the No FEAR Act are as follows (requires annual training).
- Notify employees and applicants for employment about their rights under the discrimination and whistleblower laws
- Post statistical data relating to Federal sector equal employment opportunity complaints on its public website
- Ensure that managers have training in the management of a diverse workforce, early and alternative conflict resolution, and essential communications skills
- Conduct studies on the trends and causes of complaints of discrimination
- Implement new measures to improve the complaint process and the work environment
- Initiate timely and appropriate discipline against employees who engage in misconduct related to discrimination or reprisal
- Reimburse the Judgment Fund for any discrimination and whistleblower related settlements or judgments that reach in Federal court
- Produce annual reports of status and progress to Congress, the Attorney General and the U.S. Equal Employment Commission
Sarbanes-Oxley Act
The Sarbanes-Oxley Act
Sarbanes-Oxley Act
The Sarbanes–Oxley Act of 2002 , also known as the 'Public Company Accounting Reform and Investor Protection Act' and 'Corporate and Auditing Accountability and Responsibility Act' and commonly called Sarbanes–Oxley, Sarbox or SOX, is a United States federal law enacted on July 30, 2002, which...
establishes mandatory whistle-blower disclosures under certain circumstances with criminal penalties if mandated reporters fail to disclose. This requires registration and accurate reporting for funding instruments, like stocks and bonds used to finance private industry. Some corporate officers are required to report irregularities (mandated reporters).
Whistle-blower disclosures involving securities and finance should be made to the Securities and Exchange Commission, the state attorney general, or the local District attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
.
Freedom of Information Act
The Freedom of Information Act can provide access to information required to pursue a whistle-blower action.
As an example, the use of hazardous chemicals must be disclosed to employees, such as pesticides. Injury due to hazardous chemical exposure, radiation, and other hazards permanently disable 100,000 federal workers each year. Notification of hazardous chemical exposure is also required by Right to know
Right to know
"Right to know", in the context of United States workplace and community environmental law, is the legal principle that the individual has the right to know the chemicals to which they may be exposed in their daily living. It is embodied in federal law in the United States as well as in local laws...
. FIFRA requires pest control professionals to maintain records for at least 2 years, and records maintained by government employees and contractors must be made available to the public upon request.
Federal employers, like Department of Defense, are self-policing and not subject to over-site by OSHA and EPA. Managers operating outside OSHA and EPA lack education and training so lack competency required to avoid workplace injuries.
Right to know
Right to know
"Right to know", in the context of United States workplace and community environmental law, is the legal principle that the individual has the right to know the chemicals to which they may be exposed in their daily living. It is embodied in federal law in the United States as well as in local laws...
is necessary for workplace safety involving things like chemical injury
Multiple chemical sensitivity
Multiple chemical sensitivity is a chronic medical condition characterized by symptoms the affected person attributes to exposure to low levels of chemicals. Commonly suspected substances include smoke, pesticides, plastics, synthetic fabrics, scented products, petroleum products and paints...
, radiation injury and other occupational illnesses where the cause may not be discovered by physicians without disclosures that are required by law. Workplace hazards must be prominently displayed and public hazards must be disclose to state and county agencies.
A FOIA request is the most valuable law that supports Whistleblower actions when a Right to know violation has occurred. This kind of request cannot be made anonymously and fees may be required. There may be an advantage if the request is made through an unrelated individual, such as a union official or another member of the community.
Right to know is just one example of many reasons why an FOIA request may be needed to pursue a whistle-blower action.
FOIA requests begin at the following sites.
- Department of Agriculture (USDA)
- Department of Commerce (DOC)
- Department of Defense (DOD)
- Department of Education (ED)
- Department of Energy (DOE)
- Department of Health and Human Services (HHS)
- Department of Homeland Security (DHS)
- Department of Housing and Urban Development (HUD)
- Department of Justice (DOJ)
- Department of Labor (DOL)
- Department of State (DOS)
- Department of the Interior (DOI)
- Department of the Treasury
- Department of Transportation (DOT)
- Department of Veterans Affairs (VA)
Administrative Law
Over 90% of federal government workers are employed within the executive branch, so are covered by Executive Orders.- EO 12674 Principles of Ethical Conduct for Government Officers and Employees
- EO 12356 National Security Information
Organizations within the executive branch usually provide simplified information to clarify public law for managers and workers.
Individuals that have a mandate to uphold law and public policy include the following.
- Senior Executive Service
- GS-15
- GeneralGeneral (United States)In the United States Army, United States Air Force, and United States Marine Corps, general is a four-star general officer rank, with the pay grade of O-10. General ranks above lieutenant general and below General of the Army or General of the Air Force; the Marine Corps does not have an...
- AdmiralAdmiral (United States)In the United States Navy, the United States Coast Guard and the United States Public Health Service Commissioned Corps, admiral is a four-star flag officer rank, with the pay grade of O-10. Admiral ranks above vice admiral and below Fleet Admiral in the Navy; the Coast Guard and the Public Health...
- Captain or above
- Colonel or aboveColonel (United States)In the United States Army, Air Force, and Marine Corps, colonel is a senior field grade military officer rank just above the rank of lieutenant colonel and just below the rank of brigadier general...
Other organizations that provide similar information are as follows.
- Health and Human Services
- Department of Homeland Security
- Directives.htm US Marshals Service
- US DoD
- US Navy
- See: Departmental, Headquarters Air Force, or Air National Guard
- USMC
- US Army
Senior officers that fail to act on information regarding crime or incompetence are subject to permanent reduction in rank or court martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
so must act on Whistleblower information. Civilians that occupy senior pay grades have similar requirements and restrictions.
States are organized in much the same way, and executive orders are issued by governors.
Criminal Law
Criminal penalties exist within the Sarbanes-Oxley Act.Financial irregularities involving Misappropriation
Misappropriation
In law, misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility...
is one area where criminal penalties apply to federal managers. Funds allocated by congress for one purpose may not be spent for a different purpose, including payroll. The U.S. Navy provides an example.
Title 18, United States Code, Section 1001 establishes criminal penalties for false statements. This applies to false statements exchanged between any two federal employees, which includes managers, appointed officials, and elected officials.
Criminal penalties also apply when crimes occur in the workplace, as is often the case with an injury. For example, illness after workplace exposure to hazardous substances requires access to the Material safety data sheet
Material safety data sheet
A Material Safety Data Sheet is a form with data regarding the properties of a particular substance....
and Workers compensation for medical evaluation. Failure to post mandatory information is a crime.
Retaliation remedies are limited to withholding payroll from the manager and civil remedies that involve the Civil Service Reform Act
Civil Service Reform Act of 1978
The Civil Service Reform Act of 1978, , reformed the civil service of the United States federal government.The Civil Service Reform Act of 1978 abolished the U.S...
.
State laws are also applicable to federal workers, and California provides an example.
U.S. Labor Law and Policy
Employer activity that is not prohibited by law are usually permitted. Ignorance of the law does not make something legal. Managers cannot order people to participate in situations that involve something that is illegal, unethical, or unhealthful, but may continue to do so until there is a dispute.Workers will often prevail if some kind of law or public policy can be used to justify a dispute. When a dispute goes to grievance, then laws and policies need to be cited, otherwise the dispute may fail. The following resources may help.
- Employment Law: Department of Labor
- Environmental Law: Environmental Protection Agency
- Occupational Health & Safety Law: Department of Labor
- Indoor Air Quality: Environmental Protection Agency
- Restricted Use Products: Environmental Protection Agency
- Worker Protection Standard: Environmental Protection Agency
- Hazard Communication: Environmental Protection Agency
- GSA: Facilities Standards for the Public Buildings Service (federal building code)
United States labor practices and related laws are covered in the following.
- United States Code, Title 9: Arbitration (union workers)
- United States Code, Title 29: Labor (all workers)
State laws are also applicable to all workers (including federal workers).
The following is applicable specifically to federal workers.
- United States Code, Title 5: Government Organization and Employees (government workers)
- United States Code, Title 40: Public Buildings, Properties, and Works
- United States Code of Federal Regulation, Title 29: Labor
- United States Code of Federal Regulation, Title 32: National Defense
- United States Code of Federal Regulation, Title 40: Protection of Environment
- Federal Rules
One of the more serious concerns is workplace safety, and failure to satisfy building codes established by the International Code Council
International code council
The International Code Council , a membership association dedicated to building safety, fire prevention and energy efficiency, develops the codes used to construct residential and commercial buildings, including homes and schools. Most U.S. cities, counties and states that adopt codes choose the...
can have a negative impact on occupational safety. Buildings constructed before 1990 probably do not satisfy these requirements.
As an example, government managers are often incompetent and may not recognize the reason for elevated illness rates when fresh air ventilation for the building is shut down. The building no longer satisfies OSHA laws and building codes without fresh air. EPA recommends fresh air exchange of no less than 15 cfm/person to prevent accumulation of toxic chemicals in the air, like the carbon dioxide that is exhaled in human breath. Inadequate fresh air will cause illness or death due to excess buildup of toxic gasses inside buildings.
Building codes applicable to most areas of the United States are as follows.
- Air Ventilation: EPA
- International Building CodeInternational Building CodeThe International Building Code is a model building code developed by the International Code Council . It has been adopted throughout most of the United States.-History:...
- International Plumbing CodeInternational Plumbing CodeThe International Plumbing Code is a plumbing code and standard which sets minimum requirements for plumbing systems in their design and function, and which sets out rules for the acceptances of new plumbing-related technologies...
- International Mechanical CodeInternational Mechanical CodeThe International Mechanical Code is published by the International Code Council ] through the governmental consensus process and is updated on a three year cycle to include the latest advances in technology and safest mechanical practices. The current version of this code is the with the 2012...
- National Electric Code
- National Fire Protection AssociationNational Fire Protection AssociationThe National Fire Protection Association is a United States trade association that creates and maintains private, copywrited, standards and codes for usage and adoption by local governments...
Common Law
Common law is the body of law established by judges under the authority of decisions issued by courts. Legal decisions issued by courts form precedent that can modify public law. The principle of stare decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
applies to common law, and this obligates judges to respect the precedents established by prior decisions made by other courts.
Common law is established in two bodies.
- Federal Courts of the United States
- State court (United States)
Issues that involve federal agencies apply to federal courts, and federal courts must observe laws established within the state in which that federal agency operates.
State courts apply only to state government, however, state courts have an obligation to observe common law established at the federal level, in addition to observing federal law that are not modified by state laws.
It is important to note that proof is often required to substantiate the credibility of whistle-blower complaints, but state and federal law may prohibit photographs, pictures, and video that are the most important types of proof.
Legal disputes can be handled in two different forums.
- ArbitrationArbitrationArbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
Court
Labor disputes for private employees that go to court usually begin at the county or state. Labor disputes involving federal workers begin in federal court.
Supreme Court
The US Supreme Court has stripped whistle-blower protections for most government workers.Garcetti v. Ceballos
Garcetti v. Ceballos
Garcetti v. Ceballos, 547 U.S. 410 , is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the...
is a decision that indicates that first amendment protection for free speech does not apply to situations that fall within the scope of the job description
Job description
A job description is a list that a person might use for general tasks, or functions, and responsibilities of a position. It may often include to whom the position reports, specifications such as the qualifications or skills needed by the person in the job, or a salary range...
associated with the employment of each individual government worker. The Supreme Court decision means that government management may discipline government employees that disclose crime and incompetence under certain circumstances.
Job related functions are supposed to be disclosed to management by grievance
Grievance
A grievance is a wrong or hardship suffered, which is the grounds of a complaint.-History and politics:A grievance may arise from injustice or tyranny, and be cause for rebellion or revolution....
(usually through the union), to the Inspector General
Inspector General
An Inspector General is an investigative official in a civil or military organization. The plural of the term is Inspectors General.-Bangladesh:...
, to the [Office of Special Council], to appointed officials, or to elected officials. This is counterproductive when the employer has violated the law, and agencies responsible for enforcement actions are often not funded.
Issues that exist outside the job-description are not prohibited by Garcetti v. Ceballos. Public disclosure of the work environment not related to work assignments do not compromise essential functions like national security and law enforcement. In theory, criminal penalties apply to managers that discipline employees for public disclosure of situations outside the job description.
The following are some examples of situations outside the job description.
- Undisclosed hazardous material exposure when the hazard is not in the job description
- Unauthorized acceptance of defective goods or services when the defect is not associated with the job description
- Sexual harassment, racial discrimination, slander, and stalking
- Failure to provide meals, breaks, and rest time
- Compulsory work assignments without pay
Reporting
Federal workers notify the Secretary of Labor when unsafe working conditions are not addressed by management. Employees working for private companies notify organizations like EPA and OSHA.Even though EPA and OSHA may provide no direct services for government workers, a report should be filed.
Senior executives and military officers at the rank Colonel/Captain or above have an obligation to act on Whistleblower information.
Financial or business irregularities may be reported to the U.S. Securities and Exchange Commission, Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, District Attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
, Secret Service
United States Secret Service
The United States Secret Service is a United States federal law enforcement agency that is part of the United States Department of Homeland Security. The sworn members are divided among the Special Agents and the Uniformed Division. Until March 1, 2003, the Service was part of the United States...
, Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, or other law enforcement agency.
One caution is that government employees can be imprisoned indefinitely without trial based on hear-say from coworkers, so whistle-blower reporting cannot be done casually. If the information that is being reported is classified, then the recipient must have a need-to-know and the recipient must hold a security clearance
Security clearance
A security clearance is a status granted to individuals allowing them access to classified information, i.e., state secrets, or to restricted areas after completion of a thorough background check. The term "security clearance" is also sometimes used in private organizations that have a formal...
. The need-to-know criteria generally means that the issue that is being disclosed will benefit the government if the dispute is resolved. A dispute that does not provide a benefit to the government is more appropriate for a labor dispute.
Government ethics laws are a complicated maze with unpredictable combinations. As an example, any business interests and tax records for a public employee is public domain because disclosure is required by the Ethics Reform Act of 1989 and this information must be made available to anyone that requests that information because of the Freedom of Information Act
Freedom of Information Act (United States)
The Freedom of Information Act is a federal freedom of information law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure...
. This applies to all government employees, including elected and political appointments.
Federal employment is governed by the Merit Promotion Protection Board. This applies to positions that are not filled by election or appointment.
Employees working for private companies are protected under the Americans with Disabilities Act. Federal employees are covered by the Rehabilitation Act of 1973, which offers inferior protection.
Workers that report crime or incompetence may get injured while at work. Federal workers, energy workers, long shoremen, and coal workers injured at work must contact US Department of Labor, Office of Workers Compensation.
Labor Dispute
One caution related to a labor dispute is that all union leadership team members are also employees, and these employees have job assignments. Lighter job assignments are usually given union leaders. This often includes fewer travel assignments in addition to not requiring the union leadership team members to be in the workplace during work hours. Management has the right to change the job assignment for union leaders. This includes family separation using long-term travel assignments.The whistle-blower must understand the labor dispute process because union leadership may be corrupt.
The employee must initiate a labor dispute to protect their employment rights when reprisal occurs after a whistle-blower disclosure. Employee rights are protected by Labor law in the United States. These rights are not automatically guaranteed if the employee fails to start the process in a timely manner.
Employees with no collective bargaining organization are directly represented by state labor boards, unemployment offices, and the Equal Employment Opportunity Commission. This describes employees where no union steward is available at the work-site.
The dispute must be disclosed to the employer. If there is a union contract, then the process described in the contract should be followed. If there is no union agreement then a disagreement with the employer should be discussed directly with government organizations that provides employee protection for the area of the disagreement. A labor dispute that progresses beyond words begins with a grievance.
Grievance
The grievance starts a timer that usually prohibits the employer from taking negative action against the employee (and union steward). For example, a whistle-blower complaint prohibits negative employer action for 90 to 180 days. A conventional grievance should provide a 30 day window. This prohibits things like workplace lockout, withholding payroll and firing. Each new employer action can be used to justify a new grievance.When an employee grievance prevails, the lower level supervisors that were involved in the dispute may be temporarily prohibited from promotion. Manager pay may be suspended in situations where there was a whistleblower reprisal or other crime. This provides a manager incentive to use unethical tactics to prevail. The employee must ensure the nature of the dispute is factual, justified, and substantiated.
- Factual: no false or misleading statements
- Justified: legal justification to sway a judge or jury to favor the employee
- Substantiated: evidence, testimonials, and witnesses that will support the facts
A grievance should include the following.
- Organization information (name and location)
- Employee contact information (name, address, and telephone)
- Manager contact information (name, address, and telephone)
- Employee Occupation
- Nature of complaint
- Desired resolution
- Employee signature and date
- Manager reply, signature and date
The original grievance is given to the first level manager and a copy is kept (immediate supervisor). If there is a union, then a copy should be given to a member of the union leadership team. If the manager reply is unacceptable, then the grievance is updated, attached to copies of the original, and given to the manager that supervises of the first level manager (second level supervisor). This continues from manager to manager upward through the organization. The time allowed for each manager response is usually 30 days. The time allowed for the employee response is usually 7 days. The nature of the complaint may expand to include further information at each step.
When an employee dispute involves an employer that is a member of a collective bargaining unit then the grievance process is described in the collective bargaining agreement. U.S. Code Title 5 Section 7121 for federal workers provides an example framework.
If no resolution is achieved at the top level for the local organization, or if the process takes too long, then the process is brought to the attention of the appropriate government organization.
Collective bargaining protects the employer as much as the employee. The grievance process described above provides time for the employer to correct situations that violate ethics rules or laws before enforcement action becomes necessary. Federal employees that are members of a union are generally restricted to binding arbitration. Employees not limited to binding arbitration may sue in court.
When there is no labor union or if the union dispute process has produced no productive results, or if the process takes too long, then the issue is provided to the National Labor Review Board, Equal Employment Opportunity Commission, the Merit Promotion Protection Board, the Inspector General, Senator, Representative, the President, the Department of Justice, the Industrial Accidents Board, or other organization. A copy should be mailed to the officer or senior executive in charge of the top level managers in the local organization because other employees may interfere with regular delivery.
A grievance needs to cite an issue involving [tort|tort law], common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, or [crime|public law] to be effective. There is no obligation for any enforcement action for issues that do not violate law. Failure to provide pay for hours worked, criminal activity, dangerous activity, assault, failure to provide time for meals/breaks, failure to provide safe working conditions, hostile work environment (harassment), and failure to accommodate handicap are common reasons for employee complaints.
Meetings
The direct supervisor may order an employee to attend a meeting. The employee must attend a meeting during regular working hours but there are limitations. U.S. government employees cannot leave the meeting or work area except in situations involving disability or illness. Government leave policy is established by public law. Employees working for private companies operate under different rules, and restricting employee movement may be an arrestCitizen's arrest
A citizen's arrest is an arrest made by a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval Britain and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.Despite the...
in some areas if state laws require time for employee breaks and meals
Break (work)
A break at work is a period of time during a shift in which an employee is allowed to take time off from his/her job. There are different types of breaks, and depending on the length and the employer's policies, the break may or may not be paid....
. Government employees are at greater risk of serious abuse by managers due to unequal protection.
The state labor board should be consulted for more information.
One word of caution is that Fifth Amendment protection may be lost if the employee answers questions, and it is necessary to reassert this right during the meeting after answering any questions. The meeting may involve very little conversation after the employee has asserted their constitutional rights and demanded the details of the accusation.
The employee must also assert their rights. Department of Labor should be consulted for more information.
Employees must assert additional rights when ordered to attend a meeting that may involve any type of dispute. There is nothing that requires an employee to provide any information during a meeting if the topic involves a labor dispute, but the employee is entitled to be told the specific nature of any possible dispute. The following should be demanded.
- Job description
- Performance evaluation criteria
- Performance evaluation
- Improvement expectations
Employees must never make false statements during any meeting, and meeting participants risk fine or prison when false statements are made when a federal worker is present. False statements made in the presence of a federal employee is a crime, and this includes any statement made during an official meeting at a federal facility. Some states may have similar laws.
A court order may be required for telephone voice recording in some areas. Ordinary voice recording in some areas, such as California, requires consent of all parties before the recording can be used in a courtroom or during arbitration. Most meeting minutes are documented in writing by all parties, and the minutes are signed and dated at the end of the meeting.
The employees must request the specific nature of any accusation under the Sixth Amendment with the assumption that an unresolved dispute will be decided in a courtroom under the protections provided by the Seventh Amendment. Employees cannot be compelled to answer questions about potential crimes under the assumption that all such questions fall under the protection of the Fifth Amendment. No employee may be denied these protections for any reason. The specific constitutional protections are as follows.