The case involved a contractor who had made a disclosure, and was later not selected for a federal job opening. Image: Lightspring/Shutterstock.com
The MSPB has upheld prior decisions that whistleblower protections in federal personnel actions apply even to disclosures the individual made before becoming a federal employee or even applying for a federal job.
In Case No. 2022 MSBP 37, the MSPB recounted that while employed as a contractor working for the agency, the individual filed a disclosure with the agency’s inspector general’s office alleging misappropriation of funds by agency officials. Later he applied for a job with the agency but was not selected, after which he filed a complaint with the MSPB contending that was retaliation for his whistleblowing.
An MSPB hearing officer agreed with the agency’s argument that the anti-retaliation law applies only when the individual was a federal employee or job applicant at the time of the disclosure—even though the MSPB previously had held in several cases that there is no such restriction. On appeal, the MSPB had asked for input on whether it should change its position but concluded that “we see no reason to overrule our precedent.”
“We stress that this holding is not limited to federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a federal employee or applicant for employment,” the board wrote.
It sent the case back for a rehearing, finding that the individual had “nonfrivolously alleged that his disclosure was a contributing factor in a personnel action.”
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