|Note: this article was submitted before we had any information about the content of Alberta's new law. In fact the bill falls short on every one of these requirements.|
Premier Alison Redford’s introduction of her promised whistleblower protection law could not be more timely: the recent XL Foods recall and alarming disclosures about shoddy pipeline construction both underscore that tough measures are needed to protect public health and safety.
Protecting whistleblowers is not a trivial exercise, since the law has to address the huge imbalance of resources that occurs when a lone, vulnerable employee is pitted against a government department or a wealthy corporation intent on hiding its misdeeds.
Fortunately, other countries such as the U.S.A., the U.K. and Australia have already demonstrated how to do this effectively. With their decades of experience to draw upon, there’s no credible excuse today for creating a weak whistleblower law, which appears to be the case with Premier Redford’s new proposed law.
What should the bill look like? Here are some of the essential requirements:
1. Full free speech rights
As a general rule, whistleblowers must be able to blow the whistle on wrongdoing anywhere, anytime and to any audience — with restrictions only for cases where the law prevents disclosure (e.g., national security).
Weak laws tend to limit whistleblowers’ options, forcing them into cumbersome, often-secretive bureaucratic disclosure regimes that, under the pretext of giving them due process, silence them and bury their allegations.
To protect the public, whistleblowers need the freedom to go wherever they believe they have the best chance of success in their extremely risky endeavour, be this a regulator or watchdog agency, law enforcement, Parliament or, as a last resort, the media.
2. Right to disclose all illegality and misconduct
There must be a broad definition of what types of wrongdoing whistleblowers are allowed to report.
Weak laws exclude acts such as violation of policies, regulations or codes of conduct — effectively blessing such misconduct and creating uncertainty about what can be reported. These uncertainties can enable the accused organization’s well-funded legal team to tie up the whistleblower in legal technicalities until they are exhausted and bankrupt, while the wrongdoing goes unchallenged.
The law should also cover all sectors of the economy, not just government, since private sector wrongdoing can harm the public just as badly as government misconduct.
3. No harassment of any kind
Whistleblower are typically subject to a wide array of reprisals, ranging from the subtle to the brutal. These include social isolation and humiliation before their peers, being cut out of the information loop with their responsibilities given to others, impossible work assignments or no work at all, false accusations and retaliatory investigations.
The wrongdoer’s aim is to make the truth teller’s life at work a living hell, so that they eventually leave, usually on their doctor’s orders, often with life-changing mental injuries similar to post-traumatic stress disorder. With their reputation, health and earning power damaged, they often lose the family home and relationships with loved ones are shattered. Seeing no way out, some commit suicide.
All of these despicable tactics are routinely employed by government departments (at our expense) or by apparently respectable corporations, and those responsible are hardly ever punished in any way.
The law needs to make it dangerous to engage in such reprisals, by making the aggressors personally liable for both criminal and civil sanctions.
4. Forum for adjudication, with realistic burden of proof and appropriate remedies
Whistleblowers are usually forced to seek some kind of remedy after the reprisals have already begun, by which time they may already be unemployed, impoverished and suffering from stress-related injuries caused by harassment.
Weak laws send truth tellers to tribunals, which are set up as kangaroo courts because the whistleblower has to prove that the employer’s actions were intended as reprisals. This is virtually impossible — employers are rarely foolish enough to confess their motives.
In other jurisdictions, the whistleblower is given a fighting chance by shifting the burden of proof: once a connection is established between the whistle-blowing and the reprisal (e.g., if one followed immediately after the other), the onus is on the employer to show that these actions were justified and not intended as retaliation.
Strong laws can also shield the whistleblower from being harmed in the first place, for example, by allowing injunctions to prevent dismissal or disciplinary action until the allegations have been investigated. They also provide “make whole” remedies to properly compensate people whose careers and future earning potential have been devastated.
5. Mandatory corrective action
Attacking the whistleblower turns the focus away from the wrongdoing, and even when the misconduct is eventually proven, there is a strong tendency for employers to let the wrongdoers off lightly. Unbelievably, wrongdoers often receive promotions. This defeats the entire purpose of whistleblower legislation, which is to deter wrongdoing.
The law must protect the public interest through mandatory corrective action — requiring the wrongdoing to be put right, and measures taken to prevent recurrences.
These are some of the essential elements that should be in Premier Redford’s bill. If these basic requirements — which exist in other countries — are not included, it will be crystal clear that this initiative is little more than political window dressing.
David Hutton is executive director of the Federal Accountability Initiative for Reform (FAIR), which works to protect whistleblowers who safeguard the public interest.