Fedweek Legal

Federal employees are given important legal protections under the Whistleblower Protection Act. The WPA provides that it is a prohibited personnel practice for an agency to take or threaten to take a personnel action based on an employee’s whistleblowing disclosures. In order for a disclosure to be protected under the WPA, the employee must “reasonably believe” that his/her disclosure evidences one of the following: (1) a violation of law, rule or regulations; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. A “personnel action” can be: (1) an appointment; (2) a promotion; (3) a disciplinary or adverse action; (4) a detail, transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation; (9) a decision concerning pay and benefits, or awards; concerning training or education; (10) a decision to order psychiatric testing or examination, or (11) any other significant change in duties, responsibilities, or working conditions.

If you believe you have been retaliated against for making whistleblowing disclosures, you should present your claim to the U.S. Office of Special Counsel. After the OSC has completed processing the complaint, you may file an individual right of action with the U.S. Merit Systems Protection Board.

The U.S. Court of Appeals for the Federal Circuit recently issued a ruling that helps clarify what does and does not constitute a protected disclosure. (See Huffman v. OPM, 263 F.3d 1341 (2001)). James M. Eisenmann, a Passman & Kaplan partner, who represented Mr. Huffman, said that first, the court held that if you are alleging that your supervisor violated the law, telling your supervisor that he/she violated the law is not a disclosure protected by the WPA. However, making disclosures of wrongdoing to any supervisor (so long as it is not to the wrongdoer himself) will be protected, so long as it meets the other requirements of the WPA, said the court.

The court also ruled that a disclosure of wrongdoing that is part of the employee’s normal duties is not generally protected under the WPA. However, the court found that a disclosure of wrongdoing that is made outside the normal chain of command is protected by the WPA even where the discovery of the wrongdoing was a normal part of the employee’s duties. For example, a law enforcement officer who normally investigates wrongdoing in his/her job but reports that wrongdoing outside his/her chain of command has made a protected disclosure under the WPA. Although the WPA provides significant protections against retaliation for whistleblowing, meeting the requirements of being a “whistleblower” can be very confusing. Notably, Congress is considering legislation that will provide greater protections to whistleblowers and clear up some of the confusion as to when someone qualifies as a “whistleblower.”

The following information is provided by Passman & Kaplan, P.C. http://www.passmanandkaplan.com. The firm, which is based in Washington D.C., specialize in federal employment law, labor and discrimination law, specializing in Federal Civil Service law.