Life is precious and not something to be tampered with. So when people are unnecessarily harmed or die it is a great tragedy, but it is an unfortunate part of life. Consider a horrible plane crash, such as the DC-10 model that crashed in Ermenonville, France on March 3,1974, killing all 346 people on board (12,13). A cargo door blew open and the cabin floor consequently collapsed, sending the jet crashing into the forest. Or think about the contamination of a city’s water supply by factory waste. During the city’s rainy season a pond retaining waste from a food processing plant overflowed. It sent the wastewater into a nearby river (15). Now consider the fact that these two disastrous situations were avoidable. The airplane’s cargo door and cabin floor were flawed and together caused the accident (12). The factory’s capacity to retain wastewater from overflowing during the rainy season was inadequate (15). In each instance engineers knew these facts and if they had blown the whistle these disasters could have been prevented. I believe that in both instances the proper authorities should have been contacted. It should be the top priority of any engineer, or any employee for that matter, to protect the safety of the public when he/she is involved with actions which do not do so. Now consider that either one of these instances directly affects you. What is hard to understand is why laws do not adequately protect whistleblowers? The reasons for these engineers not blowing the whistle are not known. What is known is that had either of the engineers blown the whistle they would have faced the good possibility of being fired. Does it seem fair that people are punished for helping society? It is my personal belief that whistleblowers should be legally protected and maybe even rewarded.
First let’s look at why engineers blow the whistle. In fact, when engineers blow the whistle most times it is in fulfillment of their ethical obligation defined by the Code of Ethics. The Code of Ethics set forth by the National Society of Professional Engineers (NSPE) lays out guidelines for all engineers to follow. Other engineering societies also exist but are more specialized, such as the Institute of Electrical and Electronics Engineers, the American Society of Mechanical Engineers, the American Institute of Chemical Engineers, etc. They are only for specific branches of engineering. Each society’s individual Code of Ethics functions in the same way and in fact is almost exactly the same as the NSPE’s code of ethics. The NSPE’s Code of Ethics is used by the NSPE Board of Ethical Review to help make decisions about ethics cases presented to them. There are five principles embodied in the code. For each of the principles there are a set of Rules of Practice for engineers to follow. The first principle, which many times is a basis for blowing the whistle, states very plainly that engineers should "Hold paramount the safety, health and welfare of the public in the performance of their professional duties" (7). Of course the code embodies much more than this principle but this seems to be the fundamental grounds for engineers to follow. Several rules under the first principle give guidance in the area of whistleblowing. One of the rules contained under the first principle is
Yet even though there are basic guidelines for engineers to follow, the decision to blow the whistle is not clear-cut. Engineers must make the decision between their job and society. For this reason, laws need to provide adequate protection for whistleblowing employees. Then when engineers act in good faith their jobs are not jeopardized. The laws in most cases provide minimal protection. Many of the laws only provide protection in certain areas and were not at first intended to be whistleblowing protection laws. For instance, the Energy Reorganization Act, Clean Air Act, Federal Water Pollution Control Act, Federal Mining Safety Act, and National Labor Relations Act all provide protection for whistleblowers who report wrongdoing which is in violation of their specific act (3). If a violation of one of these acts is committed then whoever blows the whistle is supposed to be protected. What if a violation does not occur in one of these areas? Some areas lack legislation that provides protection. "Federal laws omit important industries such as aviation, pharmaceuticals, and manufacturing and production of food, medical devices, or consumer products generally" (11).
There is also the False Claims Act, which was passed in 1863. Congress passed this act to protect the federal government from businesses attempting to take advantage of them while the country was in the period of Reconstruction after the Civil War. This act provided private citizens with the right "to sue, in the name of the United States, any company which was engaging in fraudulent practices with respect to the federal government" (14). In 1986 the Act was reformed. The reformation gave protection to whistleblowers involved in exposing fraudulent practices in violation of the False Claims Act and increased the fine placed on violators. The employee may bring suit against a company if the company submits "a false claim for payment for goods or services which were not actually provided to agents of the government, or to any government contractor or grantee" (14). If a company "attempts to avoid or decrease an obligation to the government" or if it submits "any false record or statement in support of a claim" a suit may also be filed (14). The whistleblowers are supposedly protected from retaliation by their employers and can receive money in retribution if the employer violates the statute and retaliates against the employee (14). This may sound fine and good, but what about non-government related actions, such as unethical research practices within a private company? If an employee, for instance, blows the whistle on a private company that is falsifying records to certify a faulty product this would not merit protection under this act. Also there are stipulations on how to blow the whistle. The False Claims Act requires that a person bringing a suit against a company must blow the whistle to the United States government and not to the defendant, which is usually the company, to the media, or to any other third party (3). In essence this says that the person must blow the whistle externally, not internally, if he/she wants to file a suit. So there is no protection for people who blow the whistle internally, within a company. If the problem is exposed and fixed, is that not sufficient for legal protection? If society is benefited, why should it matter if the whistle was blown internally or externally?
There is yet another act that attempts to protect whistleblowers. The Civil Service Reform Act of 1978 provides government employees with protection from retaliation, such as loss of job, which before was nonexistent (14). It "establishes legal sanctions against officials guilty of reprisals" (11). Before this act was established a very important series of events occurred. On November 13, 1968 the Deputy for Management Systems in the Office of the Secretary of the Air Force, A. Ernest Fitzgerald gave testimony in front of the Joint Economic Committee concerning the manufacturing of the C5-A aircraft. In the beginning his superiors refused to allow him to testify, but reluctantly ended up doing so telling him not to mention the C5-A. He did not listen and informed the committee that the C5-A project might be as much as $2 billion over budget. Following his testimony, on January 6, 1969, a memorandum was circulated internally at the Air Force stating three ways that Fitzgerald could be terminated. Then again in June 1969 Fitzgerald testified, this time in regards to a different Air Force procurement program. On November 4, 1969 Fitzgerald was relieved of his duties. He did not submit easily though. After 12 years of litigation and immense legal expenses, in 1982, Fitzgerald regained his position with the Air Force. Prior to this, in 1977, he testified along with Ralph Nader, the director of the National Federation of Federal Employees, as part of the Personnel Management Project established by President Carter. From this program came the Civil Service Reform Act of 1978, an attempt to prevent retaliation, such as Fitzgerald suffered (14). To reinforce this act and strengthen the protection for whistleblowers, Congress also passed the Whistleblower Protection Act of 1989. This act set deadlines for prosecution and sped up the entire process of ruling on whistleblowing cases. Also it forbade the disclosure of whistleblowers’ names while the case was under investigation. This provision was to prevent employees from being fired or discriminated against while in the workplace. But this act only provides protection for government employees (14).
Also the Civil Service Reform Act of 1978 established the Office of Special Counsel (OSC) (3). This counsel investigates whistleblowing cases and makes a ruling as to whether the whistleblower or the retaliator is in the right. Did the whistleblower have grounds to blow the whistle or was it correct for the employer to fire him/her? Problems existed with the OSC. When it failed to meet its mandate there was very little possibility for judicial review. This together led to an increase in retaliation by employers and a decrease in whistleblowing. Employers took advantage of the situation because no means were being employed to cease retaliation. Consequently employees chose not to blow the whistle, reluctant to lose their employment and possibly their career. The OSC’s lack of action during the ten years after its birth led to the Whistleblower Protection Act of 1989 (3). It still seems that the OSC fails to do the job it is designed to undertake. In 1995 Congress reported that of the 603 cases the OSC reviewed concerning whistleblowing and retaliation, only three were in favor of the whistleblower (6). This is a striking statistic. It seems contrary to the their desired function, protection of whistleblowers. "In fact…the Office of Special Counsel, or OSC, widely is viewed as inept and even hostile to whistle-blowers. In the past, OSC actually has used confidential information to blacklist whistle-blowers and keep them from getting promotions or jobs with other agencies" (6). If OSC’s established function is the protection of whistleblowers and it is not protecting them, then who will protect whistleblowers? How did this organization’s original purpose become so completely undermined?
One last protection for employees is the common-law protection or public policy doctrine. This policy exists to protect employees from wrongful discharge in three separate forums. An employee can not be discharged for 1) "refusing to commit an illegal act," 2) "for exercising a statutory right," or 3) "for carrying out an important civic duty" (14). The problem is that not all states have extended the public policy doctrine to include whistleblowing and the states that have done so provided limited or narrow protection. To further complicate the matter, many whistleblowing cases involve adherence to professional codes and personal conscience. Common-law protection does not encompass this facet of whistleblowing. Courts usually can not rule in favor of the whistleblower if the reason for discharge does not fall into one of the three circumstances above (14).
An example of a case that proves common-law does not provide adequate protection is the Virginia Edgerton case. Virginia Edgerton was an employee with the Criminal Justice Coordinating Council in New York City with thirteen years experience in data processing. Her employment involved the development of a police dispatch system, called SPRINT. This system allowed for quicker dispatching of police cars resulting in a quicker response time. Ms. Edgerton foresaw a possible problem with this system, SPRINT, when used in conjunction with a system already in existence. She was concerned that the system would overload and seriously effect the operation of the police department. When she expressed her concern to her immediate supervisor, Mr. Sarwar A. Kashmeri, he told her that no such problem existed and not to pursue the situation any further. Not one to take no for an answer, Ms. Edgerton wrote a memo to higher authorities within the organization. As a result of her continued pursuit of the problems she envisioned with the system, she was fired. The grounds for her dismissal, according to her supervisor, entailed the following: she violated a direct order not to issue any more memorandums on the subject and she did not have the memorandum approved by him, the supervisor, before circulating it. The Institute of Electrical and Electronics Engineers reviewed this case and concluded that Ms. Edgerton was acting ethically and professionally. They referred to the article of the Code of Ethics which states all engineers must "Hold paramount the safety, health and welfare of the public in the performance of their professional duties" (10). Even so, as far as her employment was concerned, the IEEE had no effect on regaining her job for her but did note that the employer was unprofessional in its action (10). Often times members of these professional associations are divided as to how their association should act pertaining to "defending employees who challenge management decisions" (11). Also there is little legal basis for the courts to protect Ms. Edgerton. She acted on conscience and in accordance with the Code of Ethics. Therefore this left her with no protection. This case also demonstrates the fact that internal whistleblowers have minimal protection.
To further demonstrate the lack of protection provided for whistleblowers, here is another case. This particular case happens to still be ongoing. This case involves the Department of Energy (DOE) in Tennessee and Joseph P. Carson, a nuclear safety assessor for the DOE and Professional Engineer. The DOE has a very important and pertinent job. "DOE's vital missions include its sole responsibility for the safety and security of America's nuclear stockpile of thousands of atomic weapons and hundreds of tons of nuclear weapons material" (1). Also included in its responsibilities is the safe clean up and disposal of the excessive amounts of radioactive and hazardous materials, both products of the Cold War (1). The handling of such hazardous materials places a burden on the DOE to act safely and ethically. This burden is even greater because the DOE is not subject to outside regulation (1). So when Joseph P. Carson noticed safety infractions being performed by the DOE he felt obliged to report them. In doing so his life has been turned upside down and inside out. As he said in his declaration before a court,
This protection seems grossly inadequate. Time after time Joseph P. Carson suffered at the hands of the DOE for expressing his concerns for safety. This seems to me like an obligation that engineers have, especially at the DOE, which as mentioned before is not subject to outside regulation (1). Case in point, supposedly as a consequence of the DOE reprimanding Joseph P. Carson, two very unfortunate, avoidable instances occurred. Two employees died in work place related accidents that supposedly are related to the DOE "suppressing many of his [Joseph P. Carson’s] valid and significant safety findings" (1). Nuclear waste and radioactive material are not substances that should be fooled around with. Compromising safety in handling and disposal of this material is putting innocent people and the future unnecessarily at risk. Another disconcerting fact is that it has been documented in court that harassment of whistleblowers occurs and yet still nothing has been done. "Former Energy Secretary Hazel O'Leary admits in a videotaped deposition that workers who expose flaws at nuclear weapons plants and labs are harassed and undermined by their bosses, USA Today reported" (8). I am sure that not all whistleblowing employees face retaliation in the workplace. This statement just documents that it does occur and so far not much has been done to prevent such reprisals.
So what happens to engineers who blow the whistle internally, are not employed by the federal government or whose charges do not involve the federal government? The laws do not provide much protection from loss of employment for these individuals. There seems to be an extensive amount of protection for employees who are external whistleblowers. The False Claims Act requires external whistleblowing but this act only refers to matters involving the federal government. The Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989 only protects government employees and the means of whistleblowing must again be external (3). Even then the OSC fails to enforce the statutes effectively. Most other statutes also only protect for whistleblowing that is done externally. The laws fail to protect internal whistleblowers from retaliation. I found this view to be the opinion of several professionals as well. I came in contact with these individuals through a discussion list on engineering ethics via email. Edward H. Fauth, a member of the Professionalism and Ethics Committee of the National Council on Evaluation for Engineering and Surveying (NCEES) wrote, "It is my impression that whistleblowing by an engineer who is employed in private business, and not involved in governmental activity, is lonely and dangerous to his/her occupational welfare" (5). Walter L. Elden, a professional engineering, and Eric Price offered similar ideas that concurred with Fauth’s. Elden stated, "My experience is that there is no protection for internal whistleblowers" (4). Eric Price stated, "The ability of companies to retaliate against whistleblowers is so vast that the act, upon which public safety depends, is an act of uncommon valor" (9). Why should this be the case? I believe that whistleblowers should receive maximum protection under the law. If they are benefiting society and looking out for the general welfare of the public then why should they suffer? They should not. I want everything that I use or is around me to be as safe as possible. Someone should not have to deal with unsafe circumstances because an engineer did not blow the whistle and prevent it.
Works Cited
<http://www.mindspring.com/~jpcarson/>.
<http://www.mindspring.com/~jpcarson/suit-dat/carson1.htm>.
Employee, the Organization, and Society. American Business Law Journal. 29 n2 p267-308.
ethics-discussion@majordomo.ieee.org. 20 Nov. 1998.
6. Grassely, Charles Sen. Government Corruption. 1998 February 2. Insight. p. 9.
7. Harris CE, Pritchard MS, Rabins MJ. 1995. Engineering Ethics: Concepts and
Cases. New York: Wadsworth Publishing Company. Appendix.
<http://www.mindspring.com/~jpcarson/leary.htm>.
10. Professional Responsibility and the Dispatching of Police Cars--A Case Study. In: Pavlovic K, Schuab
12. Sawyer F. 1976. The Case of the DC-10 and Discussion. In: Pavlovic K, Schuab JH, editors. 1983.
Engineering Professionalism and Ethics. New York: John Wiley & Sons, Inc. p. 388-401.
13. Today's Tragic Top 100. 5 September 1998. EJECT! Aviation Homepage. 12 November 1998.
<http://www.kolibri.lr.tudelft.nl/eject/disaster/disaster.htm>.
14. Westman DP. 1991. Whistleblowing: The Law of Retaliatory Discharge. Washington, D.C.: The
Bureau of National Affairs, Inc. p. 81.
15. Whistleblowing City Engineer Case No. 88-6. 3 March 1998. National Society of Professional
Engineers. 23 October 1998. <http://www.niee.org/cases/case88-6.htm.>.