Over the years, lawmakers have recognized the crucial service whistleblowers provide in holding organizations accountable for wrongdoing. As a result, many state and federal laws have been enacted to encourage whistleblowers as well as protect them from workplace retaliation. One such law is the Whistleblower Protection Act, which provides a way for federal employees to make disclosures of misconduct and to report instances of retaliation. Below, you’ll find an overview of the Whistleblower Protection Act and key points to consider if you are – or might be – a federal whistleblower.
Creation of the Whistleblower Protection Act
Whistleblower rights and protections were initially addressed by the Civil Service Reform Act of 1978. In 1989, Congress passed the Whistleblower Protection Act to “strengthen and improve protection for the rights of federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government.” One way the law did this was by clarifying the procedure by which employees could report wrongdoing and workplace retaliation. Another was by separating the Office of Special Counsel(OSC) from the Merit Systems Protection Board and empowering the OSC to represent whistleblowers in these matters.
Who Is Protected Under the Whistleblower Protection Act?
For purposes of disclosure and protection from retaliation, the law generally covers current federal employees, former federal employees, and applicants for federal employment. However, the OSC does not handle claims for employees of federal contractors, members of the military, or the U.S. Postal Service, among others. With regard to complaints of workplace retaliation, the OSC also cannot represent you if you work for certain intelligence agencies (such as the CIA, FBI, or NSA). Additionally, the OSC does not handle disclosures that are specifically prohibited by law and required by Executive order to be kept secret (for example, information necessary for national defense).
Making Disclosures of Wrongdoing Under the Whistleblower Protection Act
As a federal employee, you can report directly to the OSC any instance of the following types of misconduct:
- A violation of law, rule, or regulation
- Gross mismanagement
- Gross waste of funds
- Abuse of authority
- Substantial and specific danger to public health or safety
Although the OSC does not investigate whistleblower claims, they will review the disclosure and if they find a substantial likelihood of wrongdoing, they will refer the matter to the agency head who is required to investigate the claim and report back to the OSC within 60 days. In order to show a substantial likelihood of wrongdoing under the Whistleblower Protection Act, you must provide reliable, first-hand knowledge of the misconduct. Speculation or second-hand information is not enough. You also cannot make the disclosure anonymously, although you can request that the OSC keep your identity confidential.
Filing a Whistleblower Retaliation Claim Under the Whistleblower Protection Act
If you’ve already made disclosures as a whistleblower and you feel you’ve been treated unfairly as a result, you may report the retaliation to the OSC. The OSC will investigate your claim and, if they believe retaliation did occur, they will report their findings to the agency to take corrective action.
In order to prove that retaliation occurred, you must show the following elements:
- You disclosed misconduct as described above.
- The official who took, threatened, or influenced the adverse personnel action against you (such as firing, transfer, demotion, pay cut, significant change in duties, failing to promote, etc.) knew of your disclosure.
- Your disclosure was a contributing factor in the adverse actions against you.
If retaliation did occur, you may be able to obtain back pay and benefits, attorneys’ fees, a clean record, and other costs. Additionally, officials who retaliate may be subject to disciplinary action such as demotion, removal, suspension, and fines.
Whistleblower Protection Enhancement Act
While the Whistleblower Protection Act included important avenues and protections, many people believed that in practice its protections were weak, especially due to judicially created loopholes. As a result, President Obama and Congress unanimously passed the Whistleblower Protection Enhancement Act in 2012. This law strengthened and expanded the rights and protections of the original Whistleblower Protection Act.
Navigate Daunting Whistleblower Laws with the Help of an Attorney
The decision to come forward with evidence of waste, fraud, or abuse by a government agency is a heroic one, and there are many laws like the Whistleblower Protection Act that may protect you. However, it’s vitally important to know what types of disclosures are protected, who can be considered a whistleblower, and the procedures you must follow for making disclosures and filing retaliation claims. Make informed decisions by contacting an attorney familiar with whistleblower protection laws.