Whistleblower Protection Enhancement Act law passes Senate

Nov 23, 2012

Congress last week passed what has been called the strongest federal whistleblower protection in history.

Considered long over-due by the Government Accountability Project’s (GAP) Food Integrity Campaign (FIC), the Senate approved the Whistleblower Protection Enhancement Act (WPEA) which provides new protections for federal employees who report waste, fraud and abuse in government operations.

Supporters say the legislation overturns many loopholes and provides critically important upgrades to weak, current protections.

“This legislation takes a giant leap forward in ensuring that legitimate disclosure of wrongdoing will be protected and accountability to taxpayers increased greatly,” Sen. Ben Cardin, D-MD, said in a news release.

The legislation, which passed the House in September, is expected to provide protections that include:

• A public health veterinarian reporting to his/her US- DA supervisor that a slaughterhouse repeatedly violated humane handling regulations;

• An FDA inspector who tries to expose falsification of salmonella records at a cantaloupe farm;

• A Food Safety and Inspection Service (FSIS) district office manager reporting frequent complaints by FSIS poultry inspectors that increased line speeds have made it impossible for workers to pull all potentially contaminated birds off the line;

• An FDA researcher whose attempts at publishing new findings on a controversial food ingredient are stifled by upper management.

The U. S. Office of Special Counsel, which will enforce the act, said the bill’s reforms give additional tools to protect federal employees from unlawful retaliation. The law will:

• Overturn legal precedents that narrowed protections for government whistleblowers.

• Give whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers.

• Restore the Office of Special Counsel’s ability to seek disciplinary actions against supervisors who retaliate.

• Hold agencies accountable for retaliatory investigations, among other improvements.

Passage of the WPEA plays a significant role in food safety oversight, according to GAP, because it better protects those charged with enforcing food safety laws, including USDA veterinarians and inspectors as well as FDA employees. Over the past several years, FIC has heard from countless federal whistleblowers who desperately want to expose food industry wrongdoing or threats to public health, but failed to come forward due to a lack of strong whistleblower protections, which are necessary to safeguard against retaliation.

“America’s food just got a lot safer,” said FIC Director Amanda Hitt. “Government workers who serve as the public’s watchdog are now themselves safer from retaliation. Federal food safety employees have finally been deputized to protect the food supply.”

Under the new legislation’s improvements, a federal employee is now protected even when s/he:

• is not the first person who discloses given misconduct

• blows the whistle while carrying out job duties

• makes a disclosure to a supervisor

• discloses the consequences of a policy decision, or

• does not have “irrefragable proof” (defined as “undeniable, incontestable, incontrovertible proof”) of government misconduct.

According to GAP, there are examples where this legislation could have helped.

For example, former US- DA public health veterinarian and GAP client, the late Dr. Dean Wyatt, would have benefited from these protections had he access to them years ago when he continually tried to blow the whistle on slaughterhouse animal abuse. Instead of listening to Wyatt, USDA supervisors transferred him to another slaughterhouse across the country and imposed other forms of retaliation as attempts to silence his concerns. Wyatt was only vindicated when an outside group took undercover video of wrongdoing that he alleged.

And in another example, the group says with better safeguards against intimidation, former FDA Public Health Service officer Renee Dufault may not have felt obligated to leave her post after trying to reveal her findings of mercury in foods containing high fructose corn syrup.

Hitt concluded by referencing the next steps in advocating for food worker rights, stating: “We’re not done yet— these protections only cover federal food employees. The 2011 Food Safety Modernization Act protects corporate workers exposing problems with FDA-regulated products. However, USDA-regulated product industry workers still lack protections.

These workers—who monitor our beef, poultry, pork and egg products—still cannot safely speak up for the public welfare.”

Sen. Chuck Grassley, R- IA, also commented on the need for more reform.

“This much needed update helps whistleblowers who risk their careers by sticking their necks out to simply tell the truth,” said Grassley. “The Whistleblower Protection Enhancement Act is an important step forward, but improvements are still needed to ensure that intelligence community whistleblowers receive the protection they deserve for uncovering fraud deep within the bureaucracy.”

Center for Responsive Politics research found support for WPEA from 15 organizations, all of which were either unions or nonprofits focused on government reform. Support came not just from federal worker unions like American Federation of Government Employees and the National Treasury Employees Union, but also from private sector unions like the United Steelworkers.

The legislation was sponsored by outgoing Sen. Daniel Akaka, D-HI. “I have worked on this legislation for over a decade, most recently as chairman of the federal workforce subcommittee, and I truly thank my colleagues for enacting this important legislation at this time,” Akaka said in a written statement. The bill, introduced by Akaka in April 2011, had originally passed the Senate in May 2012. The

House approved the bill with minor modifications in late September; the Senate then passed the revised measure by unanimous consent. — Traci Eatherton, WLJ Editor