After months of disagreement and debate that resembled a political soap opera, French lawmakers finally have granted expanded rights to employees who report threats to the public interest.
The new whistleblower measures include many European and international standards, including retaliation protection for employees of public institutions and private companies, the right to disclose information to the media under certain circumstances, and penalties for people who retaliate against a whistleblower.
Yet, the law has a number of shortcomings that could limit whistleblowers’ ability to be protected and receive compensation if they suffer retaliation in the workplace.
Adopted by Parliament on 8 November 2016, the new whistleblower protections are included within the “Transparency, Fight Against Corruption and Economic Modernization Bill,” better known as Sapin II, named for Finance Minister Michel Sapin.
The law is the product of collaboration among lawmakers, academics and several French NGOs. Although some important provisions did not survive the compromises within the Senate and National Assembly, the law represents a major step forward in protecting whistleblowers in a country with strong historical and cultural barriers to exposing inside information.
Critically, the new law standardizes France’s highly fragmented legal framework. Instead of seven sector-specific laws, Sapin II lays down a common definition of whistleblowing as reporting “threats or serious harms to the public interest.” This complies with standards of the Council of Europe and OECD, as well as rulings issued recently by the European Court of Human Rights.
The law contains many strong provisions, including:
- the right of employees to report a broad range of information, including on environmental, health and safety concerns, as well as any threat to the public interest;
- protecting whistleblowers from all forms of retaliation, including – importantly – defamation complaints; this includes doubling financial penalties for people who file vexatious defamation claims against a whistleblower;
- making it a crime to retaliate against a whistleblower, violate a whistleblower’s confidentiality, and interfere with a public interest disclosure;
- requiring companies with more than 50 employees to set up internal whistleblower procedures;
- allowing employees to disclose information to the media as a last resort to protect the public interest; and
- requiring that internal procedures guarantee confidentiality of whistleblowers’ identity, the information disclosed and the subject of the disclosure; violating these provisions is punishable by up to two years in prison and a €30,000 fine.
A new independent institution, the Rights’ Defendant (Défenseur des droits), will have the authority to advise and protect whistleblowers, and otherwise enforce the law. The agency’s broad powers also include granting financial compensation to victimized whistleblowers, waiving employees’ legal costs, and seeking prosecution of people who retaliate against a whistleblower.
In addition, dismissed whistleblowers can ask the Labour Court to be reinstated, or, if they are not comfortable with returning to their previous position, preserving their salary.
Despite its strengths, many advocates are displeased that the law does not allow whistleblowers to contact the Rights’ Defendant directly, without first reporting misconduct within their workplace. This is seen as exposing employees needlessly to retaliation. Labor unions have complained that they are not listed as an avenue for employees to report crime, misconduct and public health dangers.
In another shortcoming, the law does not protect disclosures of certain medical, legally privileged, and intelligence and national security information. This could allow corruption and threats within these sectors to persist without adequate means to expose and investigate them.
Moreover, whistleblowers seeking protection under the law must demonstrate that they disclosed information in good faith. Such a subjective test could represent a major legal obstacle for employees who have suffered retaliation and are entitled to financial compensation.