Statutory protection of whistleblowers
A milestone was reached in 2016 when, after several years of public debate, the Whistleblowers Authority Act came into force. This act requires all organisations in the Netherlands with more than 50 employees to introduce an internal reporting procedure for reporting wrongdoings. It also prohibits retaliation against employees who properly reported potential wrongdoing. If the organisation has a works council, the employer must ask for its consent to implement a whistleblower policy. If no whistleblower policy exists, the works council may initiate the process of adopting one. An important feature unique to the Dutch system is that whistleblowers may only report externally after they have tried sufficiently to be heard internally. In addition, Dutch law does not “reward” whistleblowing through financial compensation programmes.
The Dutch Whistleblowers Authority
The act has led to the establishment of the Dutch Whistleblowers Authority. Individuals may contact the Authority for free and confidential advice. A separate department in the Authority can also carry out independent and objective investigations into reported issues, which lead to factual and anonymous reports with recommendations for employers. The Authority does not have any instruments to punish employers for not protecting whistleblowers or for committing any other whistleblowing-related offence.
During the first three years of its existence, the Authority’s performance was heavily criticised. This included criticism by the Ruys Report authors – which led to the early retirement of the Authority’s full board in 2017 – and of individual whistleblowers. The Authority has now made a new start, with plans to improve the process based on recommendations as outlined in the Ruys Report. The government will closely monitor these plans and has confirmed its support for expanding the Authority’s capacity. The Authority’s performance will be reviewed in 2020.
First Dutch cases: lessons for employers
On 1 May 2019, nearly three years after its establishment, the Dutch Whistleblowers Authority published two reports relating to investigations into reported wrongdoings. Currently, twelve other cases are under investigation. In one report, the Authority concluded that the employer’s investigation into reported wrongdoing was insufficient. One of the recommendations to the employer was to not involve the HR department into the internal investigation of concerns raised by an employee. The Authority aims to work on a continuous flow of reports from which other employers can learn.
A new directive to protect whistleblowers was approved by the European Parliament on 16 April 2019. It contains EU-wide standards for protecting whistleblowers who reveal breaches of EU law in a wide range of areas. The new rules will establish safe channels for reporting both within an organisation and to public authorities. The rules will protect whistleblowers against retaliation and require national authorities to inform citizens about this and to provide training to public authorities on how to deal with whistleblowers. The directive still needs to be formally approved by EU ministers. After that, member states will have two years to comply with the new rules.
EU and Netherlands compared
Currently only ten EU countries, including the Netherlands, provide comprehensive legal protection to whistleblowers. The new EU directive is, in substance, comparable to the Dutch legal framework, but only relates to breaches of EU law, whereas Dutch legislation is worded generally and applies to any suspicions of wrongdoing affecting the public interest.
In the Netherlands, only whistleblowing employees are currently protected against retaliation. The scope of protection under the EU directive is wider: it also applies to self-employed workers, trainees, volunteers, shareholders and persons belonging to the administrative, management or supervisory body of an undertaking. The Dutch government is currently preparing a bill that extends protection against retaliation to self-employed workers, trainees and volunteer workers.
Another parallel between the EU and Dutch legal frameworks relates to the burden of proof in situations where a reporting person suffered retaliation. According to the EU framework, in proceedings before a court or other authority, employers taking disciplinary measures against a reporting person must prove that the measure was not related to the report. Although the Dutch whistleblowers legislation does not have evidentiary rules to address these situations, the current legal practice in the Netherlands is actually in line with the EU system, according to a study conducted by the Dutch government in 2018.
Protection without internal reporting duty
Whereas Dutch and European law focuses on the compliance framework that organisations must meet and on protecting persons who report wrongdoing against retaliation, the US approach is different. Whistleblowers in the US are considered an integral part of the enforcement system and are encouraged to file reports with the authorities. In contrast to the approach in the Netherlands, in the US, there is no general obligation for employees to make internal reporting efforts first. Employees in the US also enjoy more protection than employees in the Netherlands: there is no internal reporting requirement, and authorities in the US may bring enforcement action against employers for any retaliatory acts.
The awards whistleblowers receive in the US are very high. On 6 May 2019, for example, the Commodity Futures Trading Commission announced a whistleblower award of approximately USD 1.5 million to an individual whistleblower.
The fact that whistleblowers have a different status in the US is illustrated by an anonymous Teva whistleblower who asked a Court of Appeals on 29 April 2019 to issue a preliminary determination on a reward claim for reporting the company’s alleged violation of the Foreign Corrupt Practices Act. In 2016, Teva had agreed to pay a combined USD 519 million settlement in connection with allegations by the DOJ and SEC of bribery in Russia, Ukraine and Mexico. According to the whistleblower, the petition to the Court of Appeals was called for because the SEC was taking too long to decide on the award.
The number of whistleblower reports in the US seem to be increasing. For example, the SEC’s Office of the Whistleblower saw an 18% increase in whistleblowing in 2018 as compared to 2017. According to the Office of the Whistleblower, the SEC awarded more to whistleblowers in 2018 than in all prior years combined.