Whistleblowing in the USA: A Guide to Legal Protections and Best Practices

Whistleblowing is the process where an employee or any other individual in an organization reports an instance of wrongdoing or criminality. In the past, this was done through offline means such as a phone line, trust box, or in person, whereas these days, whistleblowing reports are often submitted through a piece of whistleblowing software, such as FaceUp.

Whistleblowing platforms have many other uses for businesses, such as case management, surveys, questionnaires, employee feedback and so on.

How does whistleblowing protection work in the USA?

In the EU, whistleblowing protection is relatively universal thanks to the EU Whistleblowing Directive (2019), whilst whistleblowing protection in the USA is patchier and is dependent on the sector in which you work and what it is you wish to report.

The Whistleblower Protection Act 

The Whistleblower Protection Act (1989) is the broadest piece of legislation introduced in the US, but it does not provide protection for all whistleblowers, far from it. The Whistleblower Protection Act only protects federal employees, although private sector workers may be protected under topic-specific federal laws, like the Occupational Safety and Health Act, but only a small section of unlawful activity is covered by such laws.

Private sector workers do not enjoy any kind of whistleblowing protection if they are reporting violations of federal laws with no whistleblower protection or state law. However, there may be some protection for them under local laws.

Moreover, in the US, union officials are exempted from whistleblower laws.

What is the best practice in terms of whistleblowing in the US?

Whislteblowers.org lists the four following steps as best practice for whistleblowing law in the US, which companies could introduce independently if they so wish. They are:

• Confidentiality - A common thread throughout whistleblowing protection legislation, anonymity/confidentiality has the twin benefit of protecting whistleblowers from retaliation and encouraging them to speak up in the first place.
• Offering a reward - In many cases, whistleblowers provide information which allows prosecutors to recuperate money. It is advised that whistleblowers are offering a portion of this money as a reward for their courage and to encourage others to follow suit. 
• Remediation in cases of retaliation - These are measures to mitigate the damages a whistleblower may face after speaking out. They include back pay, being reinstated in their job if unfairly fired, front pay (when finding a new job), out of pocket losses, and so on.
• Independent reporting channels - Allows whistleblowers to submit reports to a neutral third-party.

Even though the legal provision for whistleblowing is less universal in the USA than in other parts of the world, implementing a whistleblowing system is still hugely advantageous for private companies.

Some of the benefits for US companies to implement a whistleblowing platform include:

• Prevention of legal disputes
• Improvement of company culture
• Protection of the company’s reputation
• Increased productivity
• Increased customer trust
• May be an investor requirement

What is protected disclosure?

Where whistleblower protections do exist, a protected disclosure is anything that a whistleblower reports that they reasonably believe is evidence of a violation of any law, regulation, or rule, or represents gross mismanagement or waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

What is the best whistleblowing solution for US companies?

Choosing a suitable whistleblowing platform for your organization is not always an easy task. As a general rule of thumb, good platforms include the following key features (not an exhaustive list):

• Reporting forms
• Anonymity
• User-friendly UX/UI
• High security (E2EE, 2FA, penetration testing)
• Customization
• Two-way communication

For a reasonably priced, feature-rich system with the highest level of security and usability, why not give FaceUp reporting tool a try? Book a consultation with our specialist today.