A Practical Guide to Whistleblower Protections in 2019

Whistleblowers have exposed some of the biggest fraud and misconduct scandals in history. Learn about the laws that protect whistleblowers in your country.

Posted by Katie Yahnke in Ethics & Compliance, Hotlines, Whistleblower on January 28th, 2019

Whistleblowers are arguably the best tool for detecting crime. In fact, whistleblowers saved U.S. taxpayers more than $3.7 billion in 2017. But, sounding the alarm often leaves whistleblowers in a vulnerable position and even more so if they’re unaware of their legal rights.

Organizations need to support and encourage whistleblowing by raising awareness about the laws and provisions protecting those who file complaints. However, this is not easy as most countries protect whistleblowers their own way, and usually with a number of very specific and limited laws.

To help, we’ve created this brief overview of whistleblower legislation in countries around the world, with key information about reporting mechanisms, anti-retaliation rules and confidentiality requirements.

Plus, here’s a free cheat sheet outlining 6 ways to get the most out of your whistleblower program.

The information in this guide is for educational purposes only and is not intended as professional advice.


Australia

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In 2017, the Australian government tabled new legislation that proposed stronger whistleblower protections and policy requirements. The goal of this reform is to create a single piece of legislation to protect whistleblowers in all (or most) sectors across the country.

If passed, the changes to protected disclosures will apply retroactively as of July 1, 2018. As of December 2018, the Senate agreed to the third reading of the Bill.

(To learn more about the new legislation, check out Australia’s Whistleblower Reform: 11 Need-to-Knows.)

Until then, Australia has no single legislation concerning whistleblowers. Currently, whistleblower legislation is made up of various provisions from sector-, industry- and state-specific laws. In fact, Australia has more than 20 federal, state and/or territorial laws relating to whistleblower protection.

In the public sector, the Public Interest Disclosure Act (PIDA) 2013 offers whistleblower protections to federal employees. Each state has its own whistleblower protection laws for public employees of the state government.

In the private sector, the Corporations Act 2001 protects current employers, officers, contractors and suppliers of private companies who disclose relevant information (in good faith) to the Australian Securities and Investments Commission (ASIC).

Other laws with provisions protecting whistleblowers include the Occupational Health and Safety Acts, the Fair Work Act 2009, the Banking Act 1959, the Life Insurance Act 1995 and the Insurance Act 1973.

For more information:


Brazil

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Whistleblower protection in Brazil has long been pieced together with general provisions from the Constitution and other laws.

Brazil’s Federal Constitution of 1988, for example, protects the personal data of Brazilian citizens. This means that the personal data of a whistleblower is protected under the Constitution as long as they are a citizen of the country of Brazil.

Then, in 2013, Brazil enacted the country’s strongest anti-corruption law. The Clean Company Act, also known as Law No. 12,846, establishes liability for corrupt acts committed by employees or entire organizations. The law lists prohibited conduct and explains how penalties are imposed on a party that violates the law.

A few years later in 2018, the Brazil government enacted Federal Law No. 13,608, giving all 26 states the ability to launch whistleblower hotlines. Those who call may identify themselves or remain anonymous.

(Follow the steps in this webinar to make sure your whistleblower hotline is a success.)

Federal Law No. 13,608 also states that governments may offer rewards to those who provide information that aids in preventing, investigating or reducing the harm caused by offenses.

For more information:


Canada

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While Canada does not have any specific legislation at the federal level, the country has enacted a number of laws that protect whistleblowers in both the public and private sectors.

Both sectors receive protections from certain provisions in the Criminal Code 1985. For example, Section 425.1 in the code prohibits an employer from threatening or disciplining an employee who reported information about a criminal offense to the appropriate authorities.

The public sector has the most robust protections. For example, the Public Servants Disclosure Protection Act, SC 2005, c. 46 outlines a procedure for disclosing wrongdoings in the federal government and requires employers to establish a policy with whistleblower protections. Provincially, Alberta’s Public Interest Disclosure Act has been enacted since 2013, Manitoba’s has been in effect since 2007 and Ontario’s since 2006.

For private-sector organizations, the federal Personal Information Protection and Electronic Documents Act (PIPEDA), SC 2000, c. 5 allows some protection for whistleblowers who wish to remain anonymous. New Brunswick and Saskatchewan are the only two provinces that have enacted whistleblower protections for the private sector.

In addition to the federal and provincial laws, other industry-related statutes exist for areas such as occupational health and safety, human rights and labor. Depending on the industry and location of the work, whistleblowing protections vary in scope and application. It’s important for companies to be educated on the laws that govern their area.

For more information:


China

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China has enacted extremely strong and comprehensive whistleblower protection laws.

China’s Regulation on Labor Security Supervision 2004 gives whistleblowers the right to report any act that breaches a law, regulation or decree. It also requires that reports be kept confidential, that whistleblowers are not retaliated against and even, in some cases, that they are compensated for their information.

In 2014, the Supreme People’s Procuratorate (SPP) developed Rules for Dealing with Whistleblowing which outlines the rights and protections of whistleblowers, including the right to follow-up on the status of their report and the right to request protection orders. That same year, China amended the Rules on the People’s Procuratorate on Whistleblowing Work to provide additional rights and protections for whistleblowers.

Then, in 2016, the SPP released a new set of regulations called Several Provisions on Protecting and Rewarding Whistleblowers for Reporting Duty Crimes. These provisions redefine retaliation, offer larger incentives for reporting misconduct and provide greater levels of confidentiality and protection for whistleblowers and their families.

For more information:


European Union

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In early 2018, the European Commission proposed a new set of rules regarding whistleblower protections across the European Union. Before the proposal, whistleblower protections in the European Union were “fragmented and uneven”, with 10 EU states offering complete protection while the rest only offered partial protection.

The new proposal seeks to provide protections for whistleblower disclosures relating to public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, public health, consumer protection and more.

The new law will:

  • Establish safe reporting mechanisms
  • Protect whistleblowers against retaliation
  • Mandate education and training

A company with more than 50 staff members (and/or an annual turnover of more than €10 million) must set up an internal process for handling disclosures. State, regional or municipal administrations with more than 10,000 citizens will also be required to set up processes.

The proposal specifies that the internal process must include:

  • Clear, confidential reporting channels
  • A three-tier reporting system (internally, to authority or to media)
  • An obligation to respond within three months
  • Protection against retaliation

A report from 2013 ranked EU members as having either advanced, partial or limited whistleblower protections. Luxembourg, Romania, Slovenia and UK have advanced protections. Those with limited laws include Bulgaria, Finland, Lithuania, Portugal and Spain.

For more information:


India

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The Whistle Blowers Protection Act 2014, commonly referred to as the “Whistleblower’s Bill”, is the primary piece of legislation in place to protect whistleblowers from retaliation and the first sound framework for reporting the misconduct of public servants in India.

Specifically, the legislation protects those who make a public-interest disclosure about a public servant’s role in corruption, misuse of power or another criminal offense. Anonymous complaints are not permitted.

An amendment was made in 2015 outlining 10 categories of disclosures that will not be protected, including trade secrets and information received from a foreign government.

More generally, the Companies Act of 2013 contains provisions making it mandatory for large private companies to establish a “vigil mechanism” to receive reports of unethical behavior, fraud or other violations of policy. The Act also requires protection against victimization for any person who uses the mechanism.

For more information:


Mexico

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In 2016, Mexico enacted four new laws and amended several existing pieces of legislation in an attempt to reduce serious administrative offenses such as bribing a public official, using false information for gain and using economic or political power for gain.

The General Law of Administrative Responsibility (GLAR) 2017 replaces two anti-corruption and administrative accountability laws. The new law requires investigative authorities of public organizations to develop confidential reporting methods. Sections 113 and 116 state that personal data must be kept confidential during investigations and legal proceedings.

The GLAR requires organizations to establish robust “Integrity Programs”. This program must, among other things, clearly define reporting chains and establish an adequate, confidential whistleblower and reporting system to disclose information about misconduct and illegal behavior.

For more information:


Russia

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There is no specific whistleblower protection legislation in place in Russia, however, there are a number of laws containing relevant provisions including Federal Law N. 273-FZ of 2008, Federal Law N. 119-FZ of 2004, the Constitution 1993, Criminal Code 1996 and Code of Criminal Procedure 2001.

Federal Law N. 273-FZ, Russia’s Anti-Corruption Law, mandates that companies operating in Russia must implement anti-corruption programs with specific anti-corruption measures. The other key piece of legislation, Federal Law N. 199-FZ, focuses primarily on state protection of whistleblowers who go public with their disclosure and participate in legal proceedings.

In 2017, the government proposed amendments to Federal Law N. 273-FZ of 2008, Russia’s Anti-Corruption Law. The amendment proposes that employers must:

  • Provide whistleblowers with greater protections
  • Provide an internal reporting mechanism
  • Take adequate steps to safeguard confidentiality.

Under this amendment, whistleblowers will also be protected from workplace retaliation and may be able to obtain legal aid.

For more information:


United Kingdom

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Financial institutions specifically are regulated under the UK’s Accountability and Whistleblowing Instrument of 2015 (and the amendment from 2017). This robust regime of whistleblower protections outlines a number of obligations, including:

  • Implement internal procedures with the option of confidentiality
  • Provide measures to protect whistleblowers from victimization
  • Appoint a whistleblowers’ champion to oversee policy effectiveness

Outside of the financial sector, whistleblowers are protected under the Public Interest Disclosure Act 1998 (PIDA). The PIDA shields employees who make protected disclosures from retaliation.

Under PIDA, disclosures are only protected if they expose a criminal offense, a breach of contract or legal obligation, a miscarriage of justice, a danger to public health or safety, damage to the environment or the deliberate covering up of information relating to any of the above.

To be protected, disclosures must be made by a “protected worker” such as an agency worker, a freelance worker, a current or former employee, a homeworker, a contractor or a trainee, and must also be made in good faith to the employer or another responsible party.

For more information:


United States

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Whistleblowers in the United States are protected under several statutes at both the federal and state level. Most whistleblower protection laws refer to a specific topic, industry or sector. Here are a few:

  • The Whistleblower Protection Act of 1989 protects US federal employees from retaliation for disclosing information about a violation of law, abuse of authority, danger to public health and more.
  • The Whistleblower Protection Enhancement Act of 2012 strengthened the original provisions from 1989 to broaden the scope of protected disclosures.
  • Whistleblowers with evidence of fraud relating to government contracts or programs are protected under the False Claims Act (31 U.S.C. § 3729 et seq.). These whistleblowers may even be awarded a portion of the recovered funds as compensation.
  • Sarbanes-Oxley Act (18 U.S.C. § 1514A), commonly referred to as SOX, protects the employees of publicly-traded companies who have experienced retaliation for protected disclosures they’ve made. In addition to the direct employees of these companies, SOX also protects their contractors and subcontractors.
  • The Wall Street Reform and Consumer Protection Act, commonly referred to as Dodd-Frank, was enacted in 2010 as a response to the financial crisis. This Act requires that the SEC reward whistleblowers who make disclosures about corporate fraud.
  • The Defend Trade Secrets Act of 2016 also provides some narrow whistleblower protections specifically regarding the theft of trade secrets.
  • The Occupational Safety and Health Act 1970 is one of many statutes enforced by the Occupational Health and Safety Administration that protects whistleblowers who file reports or complaints about safety issues in the workplace.

For more information:


Take it Further: Implement Your Own Whistleblower Protections

Whistleblowers have been in the spotlight the past year, exposing the wrongdoings of some of the most powerful entities on earth. And while organizations support whistleblowing in theory, they continue to underdeliver in protecting those who come forward.

Many studies confirm that whistleblowers still speak up at their own risk and that the majority of the time, those who make a disclosure are negatively affected.

When you consider that whistleblowing is the most effective method for keeping organizations in check, the missed opportunities are clear. Encouraging and protecting whistleblowers proves that your organization is ethical, moral, honest and decent. For potential employees or clients, these qualities are priceless.

Katie Yahnke
Katie Yahnke

Marketing Writer

Katie is the marketing writer at i-Sight. She writes on topics that range from fraud, corporate security and workplace investigations to corporate culture, ethics and compliance.

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