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Did you know it's National Whistleblower Appreciation Day?
Now you do, and you should, because whistleblowers matter more than ever.
By Gordon Schnell
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So here we are again with National Whistleblower Appreciation Day upon us (July 30) with little mention in mainstream media, let alone the grand fanfare the day deserves. To most, it would seem, this is just another made-up holiday to celebrate the peculiar passions or pastimes of a particularly fervent few. Easy to shrug off. No different from National Doughnut Day (June) or National Smiling Day (May), or the many other "national days" promoting a favorite food or activity.
But this one is different. Worthy of our utmost attention and esteem. Driven by Chuck Grassley, R-Iowa, and Ron Wyden, D-Ore., and their bipartisan Senate Whistleblower Protection Caucus, this special day was first introduced by Senate resolution in 2013 to honor whistleblowers and the critical role they play in safeguarding our health and well-being. The Senate has passed the same resolution every year since.
Why July 30? Because on this day in 1778, the Continental Congress passed the country's first whistleblower law. It followed the jailing of two American sailors who reportedly blew the whistle on their commander for torturing British soldiers. The newly formed government wanted to show its clear support for speaking truth to power by making it "the duty of all persons in the service of the United States … to give the earliest information to Congress or other proper authority of any misconduct … committed by any officers or persons in the service of these states." Congress paid the legal fees for the jailed sailors, too.
Two and half centuries have passed, and whistleblowers pretty much face the same competing dynamic. On the one hand, there remains strong congressional support for whistleblowers and an ever-expanding bevy of legislation to protect and reward them.
The most prevalent of the whistleblower laws is the False Claims Act, which since the Civil War has deputized whistleblowers as private attorneys general to go after those who commit fraud against the federal government. Congress has strengthened it repeatedly in more recent times, increasing the incentives and protections afforded whistleblowers, including the right to a hefty slice of any government recovery (up to 30%).
The Dodd-Frank Act now offers similar rewards for whistleblowers reporting violations of the securities and commodities laws. So do freshly minted programs for whistleblowers reporting on auto safety issues, money laundering and foreign corruption. With additional programs just around the corner as Congress currently mulls over proposed whistleblower legislation in the areas of police reform, antitrust and consumer protection, just to name a few. Legislatively, this truly has become a Gilded Age for whistleblowers.
On the other hand, despite this strong congressional backing, whistleblowers remain the target of significant scorn and retaliation. It may not be as obvious as the imprisonment to which our earliest whistleblowers were subject. But it is no less virulent. Alienation, exclusion, harassment, disparagement, demotions, pay cuts and terminations are all part of the regular corporate playbook. I have seen it firsthand with most of the corporate whistleblowers I have worked with over the years.
Whistleblowers typically fare no better on the government payroll. We are all too familiar with the humiliation and torment suffered by the brave teachers, police officers and other public servants who dared to speak out against a government office or official gone rogue or when something rubbed against their moral compass. Like the immigration detention center nurse who complained of forced hysterectomies and unsafe work practices. Or the VA workers who called out the horrendous treatment of our veterans at the hospitals that are supposed to care for them. Rather than celebrate these selfless souls for trying to fix a very broken facility or system, the powers that be tried to silence and punish them instead.
This hostility toward whistleblowers extends to much of mainstream America, too. So many are unable to shake the schoolyard mentality that nobody likes a snitch. Consider the deeply derogatory way whistleblowers are depicted in our everyday lexicon. Just look at how Merriam-Webster and Thesaurus.com, the leading sources for everything word-related, represent whistleblowers to their tens of millions of monthly visitors: betrayer, bigmouth, fink, rat, sleazemonger, snitch, squealer, stoolie, tattletale, troublemaker. The list of snipes and sneers goes on. No wonder there remains such a stubborn perception of whistleblowers as dishonest, disloyal and driven by unsavory motives.
Which brings us back to why an official day to honor these unsung heroes is so important. Not something to brush aside as just another frolic or fancy, more spoof than substance.
Congress can keep passing pro-whistleblower legislation, recognizing how critical whistleblowers have been in keeping us safe and sound. All supported by their rich and sustained track record of rooting out fraud and misconduct — Frances Haugen (Facebook), Tyler Shultz (Theranos), Dawn Wooten (ICE), LeeAnne Walters (Flint, Mich.), Cheryl Eckard (GSK), Harry Markopolos (Madoff), Sherron Watkins (Enron), Jeffrey Wigand (Big Tobacco), Mark Felt (Deep Throat), Daniel Ellsberg (Pentagon Papers), Frank Serpico (NYPD), and so on …
But until we truly welcome them and their noble quests with open arms and understanding, their persecution and mistreatment will continue, scaring off others from stepping forward in the face of fraud or injustice. Having a national day to honor them is certainly a good start. But we need to go further. Beyond the small group of enlightened senators who standing alone promote this special day and this inimitable band of modern-day warriors.
It should be recognized by all of Congress along with the executive branch and the agencies it runs. It should be hailed by the private sector, since appreciating whistleblowers is the surest way to keep their corporate houses clean. And it should be embraced by all the rest of us, in gratitude to these front-line fraud fighters for their sacrifice and service.
So next time this honorary day comes round, let us make some real noise. Let us shout it from the rooftops on every corner. Until then, if you have not already done so, thank a whistleblower for a job well done. A big fat hug would be nice, too.
Gordon Schnell is a partner in the New York office of Constantine Cannon, specializing in representing whistleblowers.
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Gordon Schnell
It’s fully staffed and taking applications for review. Edgar Barrientos-Quintana’s exoneration demonstrates the need.