FEDweek

Whistleblower Protections

The Whistleblower Protection Act is designed to protect federal employees from retaliation for blowing the whistle on waste and abuse. Whistleblowing occurs when an employee makes a protected disclosure of wrongdoing. A protected disclosure is a disclosure of information that shows:

• a violation of law, rule, or regulation;
• gross mismanagement;
• a gross waste of funds;
• an abuse of authority; or
• a substantial and specific danger to public health or safety.

For a disclosure to be protected, an employee must have a “reasonable belief” that the information is true; there is no requirement that the disclosure actually prove to be correct.

Generally, current employees, former employees, or applicants for employment to positions in the Executive Branch in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees. Positions that are excepted from the competitive service because of their “confidential, policy-determining, policymaking, or policy-advocating character,” and any positions exempted by the President based on a determination that it is necessary and warranted by conditions of good administration, are not protected. Also, the statute does not apply to the Postal Service (where union contracts might grant protections), the Government Account¬ability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and any other executive entity that the President determines primarily conducts foreign intelligence or counter-intelligence activities.

However, under an October 10, 2012 White House memo to agencies (PPD-19), intelligence employees who believe they have been retaliated against for whistleblowing through certain acceptable channels—including an action affecting their eligibility for access to classified information—can request review by their agency’s IG.

The WPA protects employees from reprisals in the form of an agency threatening, proposing, taking or failing to take a “personnel action.” This encompasses a broad range of actions by an agency having a negative or adverse impact on the employee.

The statute specifically defines the term “personnel action” to include: an appointment; a promotion; an action under Chapter 75 of the Civil Service Reform Act or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a re¬employment; a performance evaluation; a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions.

To be covered, a personnel action must be significant, but it need not be expected to result in a reduction in pay or grade. It must also be inconsistent with an employee’s salary or grade level. Thus, for example, if an individual is currently employed and assigned du¬ties or responsibilities consistent with the individual’s professional training or qualifications for the job, it would constitute a personnel action if the individual were detailed, transferred, or reassigned so that the employee’s new overall duties or responsibilities were inconsistent with the individual’s professional training or qualifications.

The WPA also protects employees from prohibited personnel practices taken because they engaged in activities that are often related to whistleblowing, including testifying for others or lawfully assisting others exercise any appeal, complaint, or grievance right; cooperating with or disclosing information to an inspector general or the Special Counsel; or for refusing to obey an order that would violate the law.

The Whistleblower Protection Enhancement Act of 2012 (P.L. 112-199) strengthened legal protections in several ways, including removing a prior limitation on protection for those who disclose wrongdoing as part of their job, who disclose wrongdoing to the supervisor who participated in the wrongdoing disclosed, or who are not the first to do so. Protection was added for challenging the consequences of government policy decisions and for disclosure of critical infrastructure information.

That revision also expanded the right to bring appeals to:

• persons being retaliated against for having filed a complaint against the agency for a whistleblower reprisal claim (i.e., where the later action, not the original protected disclosure, prompted the reprisal);

• persons retaliated against for filing or assisting an¬other person in that other person’s appeal, complaint, or grievance—whistleblowing or otherwise;

• persons cooperating with or disclosing information to the inspector general of an agency, or the OSC; and

• persons refusing to obey an order that would require the individual to violate a law.

The law also allowed for the award to employees who prevail in whistleblower appeals of compensatory damages, which includes payment of money damages for medical effects, injuries to career and reputation, emotional pain and suffering and similar impacts. That replaced a former standard allowing only for lesser “consequential” damages such as expenses related to looking for a new job.