The Whistleblower Protection Act Burdens of Proof: Ground Rules for Credible Free Speech Rights

Thomas Devine


As the ground-rule for how much evidence determines what outcome, legal burdens of proof are unsurpassed for the impact of whistleblower laws in actually protecting rights they purport to shield. The U.S. Whistleblower Protection Act (“WPA”) has pioneered modern burdens for fair rules on what it takes to win, or lose. Its standard governs all 13 U.S. corporate whistleblower statutes passed since 1989, covering nearly the entire private sector. It also has been adopted by Intergovernmental Organizations ranging from the United Nations to the World Bank. The WPA burdens of proof consist of three parts: 1) eliminating the test for hostile motives to prove a violation of rights, instead only requiring a causal link between protected speech and the challenged personnel action; 2) replacing the “predominant factor” requirement for the whistleblower’s burden to prove a prima facie case, with the more realistic “contributing factor” test, essentially a relevance standard; and 3) replacing the “preponderance of the evidence” standard, only requiring 50% plus of evidence, with a “clear and convincing evidence” standard, requiring 70-80%, for the employer’s reverse burden of proof in an affirmative defense that it would have taken the same action for legitimate reasons in the absence of whistleblowing. Currently these legal burdens of proof are not in any other nation’s whistleblower laws, most of which are silent on the quantum of evidence. The issue should be carefully considered in drafting new whistleblower laws. Its omission could turn well-intentioned laws to protect freedom of speech into Trojan horses.


Keywords: whistleblowing, Whistleblowers Protection Act, burden of proof, free speech

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