The Office of Special Counsel has issued guidance on agency obligations under two laws enacted last year designed to better protect federal employees against whistleblower retaliation and other prohibited personnel practices.
One of the laws, P.L. 115-73, “makes it a prohibited personnel practice to access an employee’s medical records in furtherance of whistleblower retaliation. Additionally, it establishes mandatory disciplinary penalties for supervisors who engage in whistleblower retaliation. It also enhances agencies’ obligations to provide information to employees on whistleblower protections. New supervisors are now also required to receive training on responding to whistleblower retaliation complaints, increasing awareness of whistleblower protections,” the OSC said.
Further, agencies “must develop criteria that promote the protection of whistleblowers as a critical element for establishing the job duties of all supervisory employees. The criteria must include principles for the protection of whistleblowers, such as the degree to which supervisory employees respond constructively when employees make protected disclosures, how supervisors take responsible actions to resolve these disclosures, and ways in which the supervisors foster an environment in which employees of the agency feel comfortable making such disclosures.”
Both that law and P.L. 115-91 further specify that supervisors found to have committed a prohibited personnel action must be penalized with at least a three-day suspension on a first offense and removal for a second.
Separate guidance told agencies to ensure that any non-disclosure forms that employees must sign include a statement that those policies do not override whistleblower protections. Agencies should post that statement on their public and internal websites as well, it said.
OSC further alerted agencies to a new provision strengthening the OSC’s authority to demand information from an agency during its investigations, including by generally barring an agency from withholding information by citing attorney-client privilege.