Sunday Read: 2022 in Review

This overview of National Whistleblower Center Long Reads was sent as part of NWC’s “Sunday Read” series that aims to educate supporters about whistleblower stories and whistleblower legislative or policy initiatives and current events. For more information like this, please join our mailing list.

Thus far, 2022 has proven to be an important year for whistleblowers in the United States: changing times are altering the whistleblower landscape and lawmakers are taking initiatives to pass critical whistleblower legislation.

In this week’s Sunday Read we recognize the critical role whistleblowers play in safeguarding democracy and the rule of law by highlighting some of the most notable events from the past few months.

Recognizing Tesla Whistleblowers

In May, we explained the whistleblower situation at Tesla and our growing concern about the way CEO Elon Musk’s history of mocking whistleblowers could impact whistleblowers in the tech industry upon his takeover of Twitter.

In essence, a slew of Tesla employees — Steven Henkes, Christina Balan, Jessica Barraza, Michala Curran, Owen Diaz, Karl Hansen, and Martin Tripp — stepped forward to report Tesla for engaging in various types of misconduct, including violations of safety protocols and labor laws, misrepresentations made in violation of public-disclosure requirements, and harassment. Ultimately, all of these individuals were either silenced or discharged after “blowing the whistle” on Tesla.

Our readings help you all see the signals that Musk’s takeover of Twitter might have some serious consequences for whistleblowers in the tech industry. While the situation is developing, NWC will continue to monitor Musk and Tesla and remains committed to fighting for tech industry whistleblowers.

Stopping Russian Oligarchs

In April, we discussed the importance of proposed amendments to the Anti-Money Laundering Act of 2020 (AML Act) and the critical role whistleblowers play in ensuring the success of recent sanctions against Russia.

The AML Act protects against various illicit activities, including terrorism financing and money laundering, and the proposed amendments of the AML Act are important becausethey will boost whistleblower confidence and incentivize other whistleblowers to come forward. In turn, this would advance the United States’ interest in stopping Russian aggression in Ukraine by encouraging whistleblowers to report violations of sanctions relating to Russia and send a clear message to Russian oligarchs that any engagement in a financial crime will be reported. Join us in telling Congress to improve AML protections here.

Recognizing Wildlife Whistleblowers

In March, we celebrated World Wildlife Day and published a Sunday Read focused on Wildlife Whistleblowers. On March 3, 1973, the Convention on International Trade in Endangered Species of Wild Fauna and Flora(“CITES”) was adopted by signatories including the United States. CITES is one of the oldest and most widely signed conservation treaties in the world, and created a plan for sustainable practices years before climate change become an issue of popular debate. To foster awareness of the importance of wildlife conservation, the United Nations (UN) declared March 3rd World Wildlife Day (“WWD”). National Whistleblower Center joins the UN in recognizing the value of wildlife protections.

The International Union for Conservation of Nature (“IUCN”) is a conservation organization consisting of more than 1,400 NGOs and governmental organizations. New resolutions passed during the IUCN’s Marseille Congress provide new hope for the implementation of greater protections for whistleblowers among member nations. With the involvement of the National Whistleblower Center, the Marseille Congress passed four new resolutions for the protection of wildlife that included notable whistleblower provisions.

In our Sunday Read, we also highlighted U.S. efforts to protect wildlife whistleblowers, by discussing the bipartisan Wildlife Conservation & Anti-Trafficking Act (“WCATA”) which was reintroduced in Congress in December of 2021. The bill aims to tackle wildlife crime by making it simpler and less dangerous for whistleblowers to come forward with relevant information that helps the government prosecute wildlife crime. You can join us in telling Congress to pass this bill here.

Concerning Trends for the False Claims Act

In February, we discussed a concerning trend regarding the False Claims Act (FCA) — one of the United States’ strongest laws preventing the misuse of public funds — following the U.S. Department of Justice’s (DOJ) announcement that it had collected more than $5.6 billion from FCA lawsuits in Fiscal Year (FY) 2021.

By allowing private individuals to sue in court on behalf of the United States and guaranteeing them a sizeable share of the amount recovered after a successful prosecution, the FCA incentivizes whistleblowers to report misconduct and provides them with an avenue to bring actors who defraud the United States to justice.

Although whistleblowers were attributable for $1.6 billion of the $5.6 billion that the DOJ collected in FY 2021, whistleblowers were only awarded $237 million — the lowest amount since FY 2008 despite an increase in recoveries since last year. This is alarming because it shows that whistleblowers are being awarded less than in previous years. contract had it known otherwise.

There is currently a bipartisan push to amend the FCA to improve the government’s system for evaluating claims, limit the use of the materiality defense, and provide more opportunities for whistleblowers to demonstrate the merits of their case. Whether or not this amendment takes off is uncertain. Regardless, given how instrumental whistleblowers are in enforcing the FCA, it is vital for the government to address this trend so that it does not compromise whistleblower confidence and disincentivize other whistleblowers from reporting misconduct. Help us tell Congress to pass these FCA amendments here.

Whistleblowers and the Media

In January, we outlined some of the ways whistleblowers have effectively raised awareness through electronic media outlets and how doing so creates grave risks for whistleblowers.

The whistleblower provisions of various federal laws prevent employers from retaliating against employees who engage in “protected activity,” which traditionally includes reporting misconduct to federal authorities or a supervisor. While courts have found that “protected activity,” in certain instances, also extends to whistleblowers who report misconduct to media outlets, it can be difficult to determine what type of media disclosures are protected. This uncertainty has caused many issues for whistleblowers who have disclosed misconduct via media outlets.

Moreover, reporting misconduct through media outlets poses great risks because, aside from exposing the whistleblower’s own identity, not all disclosures to the media are considered protected activity. For example, public employees can face criminal charges for publishing confidential government information and private employees could face civil liability for disclosing trade secrets. Additionally, a whistleblower could be ineligible from receiving a whistleblower award after disclosing the information to the media because many whistleblower programs require the whistleblower to be the “original source” of the disclosure. Nevertheless, whistleblowers should consult with an experienced whistleblower attorney before acting.

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