The Office of Special Counsel has taken up the MSPB’s decision to weigh in on a pending case that would help define the scope of whistleblower protections for federal employees—specifically whether the individual must be a federal employee or job applicant at the time the disclosure was made in order to gain protection.
The OSC would answer no to that question, saying in a brief submitted to the merit board that the Whistleblower Protection Act’s “legislative history and statutory purpose, as well as earlier MSPB decisions, make it clear that the WPA protects whistleblowers who make disclosures before applying for a federal job.”
In a case before the MSPB, an employee of a contractor with the Army made a whistleblowing type disclosure and later applied for a civil service position with the Army. He argued that the agency’s decision to not hire him was an act of retaliation.
“The WPA specifically covers applicants because Congress sought to ensure that whistleblowers outside the federal workforce would not be prevented by retaliation from entering it,” OSC’s brief states. “Requiring a whistleblower to be an applicant not just when the retaliatory personnel action occurred, but also at the time of the disclosure, would frustrate this purpose by severely restricting the number of applicants covered under the act.”
