Supreme Court Continues to Advance Broad View of Whistleblower Protections

Various whistleblower laws protect employees who “lawfully” disclose confidential information in good faith to bring to light illicit or illegal activity. Generally, therefore, employees do not receive whistleblower protections when they obtain or disclose the information illegally. A recent U.S. Supreme Court case however, demonstrates an exception to that rule. In Department of Homeland Security v. MacLean, the Court held that an air marshal who disclosed confidential information in direct violation of Transportation Security Administration (TSA) regulations was entitled to whistleblower protection. Specifically, the Court held that the exemption in the Federal Whistleblower Protection Act (WPA) excluding disclosures “specifically prohibited by law” from receiving protection does not apply to disclosures prohibited solely by agency regulations or by statutes that authorize agencies to promulgate regulations. Instead, under the WPA, in order to be excluded from protection, a disclosure must be prohibited by the specific text of a statute. Although the ruling applies only to federal employees, the Court’s analysis may shed some light on its view of whistleblower protections generally.