The general counsel for the Senior Executives Association, William Bransford, told the Senate federal workforce subcommittee recently that while the association supports whistleblower reform that it does not support jury trials for those who claim whistleblower reprisal.
While the Senate’s version of the bill, introduced by subcommittee chair Daniel Akaka, D-Hawaii, earlier in the year does not include such a provision, the House’s version does.
According to Bransford, allowing jury trials would lead to undue risk for federal managers who have to deal with problem employees.
"The reasoning behind a jury verdict is not explained and a sensational jury trial resulting in a finding against the manager with a substantial award of damages will create significant pause for managers who must make decisions to confront and deal with problem behavior for fear of being subjected to a similar fate," he said.
The SEA’s position is that the MSPB should be relied on to apply a broad law protecting whistleblowers, and it supports a provision in both bills that would allow decisions to be reviewed by any circuit court of appeals.
Provisions in both S-372 and HR-1507 would broaden the situations in which a disclosure is deemed to be protected; provide a process to review retaliatory security clearance revocations and suspensions; provide whistleblower protections to TSA employees; protect disclosures of scientific censorship; and suspend the federal circuit court’s exclusive jurisdiction.
Hurdles remain, including how to deal with protecting national security whistleblowers and whether to allow whistleblowers to file cases in district court if the MSPB has not acted within 180 days, something the previous administration opposed, arguing it could lead to forum shopping.