The Office of Special Counsel, which investigates and prosecutes cases of retaliation against whistleblowers, is urging the MSPB to not allow agencies to end-run those protections by arguing that the disclosures part of the employee’s regular duties.
The OSC filed briefs with the MSPB in two cases that will help define the scope of protections under the Whistleblower Protection Enhancement Act of 2012. One involves a Forest Service purchasing agent who disclosed to his supervisor and the agency IG alleged violations of federal acquisition rules; the other involves a federal teacher who reported the potential mistreatment of students, among other allegations. Both were fired soon afterward, according to the OSC.
Under the 2012 law, employees who allege that they were retaliated against for disclosures made in the normal course of duties bear a higher burden of proof than if they made disclosures outside the scope of their duties. OSC argues that the purpose of the additional burden “was to preserve a supervisor’s ability to manage investigatory employees in carrying out their basic job functions, but still ensure those employees are protected from retaliation.”
Neither of the two employees had investigating and reporting responsibilities as part of their regular duties, OSC said, and “it would be perverse to impose this heightened standard on disclosures—like those at issue here—that were recognized as protected long before the WPEA.”
The law was intended to increase protections for federal whistleblowers, in part by overturning prior decisions that had excluded from protection a narrow category of disclosures from federal employees who regularly investigate and report wrongdoing as principal job functions, it said.
