Fedweek Legal

The House of Representatives by unanimous consent passed the amended Whistleblower Protection Enhancement Act (S-743) on September 28. The legislation, which is expected to pass the Senate and be signed by the President, enhances protections for civil service employees who are whistleblowers. However, it excludes intelligence community employees who were covered by Title II of S-743 originally, although the Obama administration has promised to take executive action on national security whistleblower rights.


Enhanced employee protections will include removal of the limitation on whistleblowers who disclose wrongdoing as part of their job, disclose wrongdoing to the supervisor who participated in the wrongdoing disclosed, or who are not the first to do so. Section 101. Whistleblowers are protected for challenging the consequences of government policy decisions. Section 102. A determination as to whether an employee has the requisite reasonable belief about the disclosed information will be made by determining whether "a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government evidence such violation, mismanagement, waste, abuse, or danger." Section 103.

A prohibited personnel practice was added for an agency implementing or enforcing any non-disclosure policy, form or agreement that fails to contain language relating to protection for the disclosure of information. Section 104. Protection was afforded to scientists who challenge censorship, for Transportation Security Administration employees and for disclosure of critical infrastructure information. Sections 109-111.

Remedies for prevailing whistleblowers have been enhanced to add compensatory damages, including due to an agency investigation taken in retaliation for engaging in protected whistleblowing. Sections 104, 107. The Office of Special Counsel (OSC) will have a lesser burden to meet in imposing discipline – proving the protected disclosure was a "significant motivating factor" rather than a "but for" standard and will not be liable for attorney fees in disciplinary actions brought against alleged wrongdoers but rather the employing agency. Sections 106-107.

Individual right of action appeals to the MSPB by aggrieved employees were increased to include:

* 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 another 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;

* Persons refusing to obey an order that would require the individual to violate a law (expanding the IRA avenue to those who simply refuse to obey an order to violate the law—not just the persons who make a WPA disclosure of the order to violate the law). Section 101.

A provision for jury trials was not included in the legislation, but the Act reverses a number of unfavorable MSPB and court decisions, spells out that the MSPB must allow an employee to first present his case before an agency may present its defense, and gives employees a two-year trial period to take appeals of MSPB final decisions to a regional circuit court of appeals in lieu of exclusive jurisdiction in the Federal Circuit. Sections 114, 108.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.