Federal Employee Whistleblowers – Whistleblower Protection Act

Whistleblowing is a common term that refers to an employee or contractor alerting authorities that their employer is engaged in some type of illegal or prohibited activity. Activities associated with whistleblowing often include:

A violation of law, rule, or regulation,Gross mismanagement,A gross waste of fundsAn abuse of authority, orA substantial and specific danger to public health or safety.

Before blowing the whistle, you should have a reasonable belief that your disclosure is accurate. You should never proceed with a complaint based merely on suspicion or office gossip. It is important to check your facts carefully before initiating a complaint process.

It is not easy to go against management by reporting something you believe is wrong to those who hopefully can do something about it. It is however, good to know that if you do, the law usually provides protection for you – even if it turns out your concerns were unfounded.

If a disclosure is a regular job duty and was made through the usual channels used to perform the duty, then the disclosure is not protected. For the disclosure to be protected it must either 1) be a part of normal duties that was disclosed outside of the regular channels, or 2) be a disclosure that is outside of your assigned duties.

When an agency official takes, threatens to take, or fails to take a negative personnel action against you because of your whistleblowing activity, that is an illegal form of retaliation or reprisal. Congress was concerned enough about protecting those who blow the whistle on abuse in the government that it passed the Whistleblower Protection Act of 1989 (WPA) , which prohibits retaliation against a whistleblower. More recently, Congress passed the Whistleblower Protection Enhancement Act of 2012 (WPEA) which extended the protections of whistleblowing to TSA employees, strengthened the Office of Special Counsel (OSC), and closed some of the court created loopholes from the WPA.

The WPA applies only when a personnel action is taken against you at least in part because of your protected disclosure. As long as the protected disclosure was “a contributing factor” in the personnel action taken against you, the retaliation need not be the sole or major motivation for the action.

If you work for the Postal Service or one of the other agencies which are not specifically covered by prohibited personnel practices law or the Whistleblower Protection Act or the Whistleblower Protection Enhancement Act, you should consult with an attorney, union representative, or labor relations expert to learn more about bringing your case.

There are three common ways for federal employees to blow the whistle:

Report to a supervisorContact the Inspector General – IGContact the Office of Special Counsel

If you disclose the wrongdoing to the wrongdoer, your actions are typically unprotected. If information that has been mandated by the government to remain classified will be revealed through your reporting, then you must report to one of the following individuals or offices: an agency employee who has been designated by the head of the agency to receive the secret disclosure, the agency’s Inspector General, or the Office of the Special Counsel.

Probably the most common and least formal method of whistleblowing is to report to a supervisor or higher-level agency official conduct which you reasonably believe is a violation of law or evidence of government waste or fraud. You may not even consciously think of yourself as a whistleblower. But if you subsequently suffer adverse consequences after reporting wrongdoing, you should investigate your right to protection from retaliation. Section 101(b)(2) WPEA clarified that employees are protected even when the report is made in the course of the employee’s normal duties.

A potential whistleblower may contact the Inspector General’s office at the agency where the wrongdoing takes place.

Raising such a complaint will not necessarily protect your confidentiality, despite assurances, because of the interrelationship between the IG’s office and agency management. The IG’s office may or may not investigate the allegations. You do not lose protected whistleblower status if the IG’s office fails to investigate. It may simply mean that fraud, waste, and abuse will go unchecked.

If you suffer retaliation for having made the disclosure, you retain your right to pursue a personal whistleblower remedy, based upon a reasonable belief that your allegations constituted whistleblowing.

Office of Special Counsel (OSC) is an independent federal agency that interprets, investigates, and prosecutes cases of prohibited personnel practices brought by government employees. The OSC operates a confidential Whistleblower Disclosure Hotline (800-572-2249) and also accepts disclosures by mail.

Here are some of the advantages of disclosing wrongdoing to OSC:

Confidentiality is provided by lawThe OSC can order your agency to investigate and report on the information disclosedOnce the agency reports on the information disclosed, the OSC must send the report (with comments that you and OSC choose to add) to the President, Congress, and Comptroller GeneralIf the OSC does not send the disclosed information to your agency for an investigation and report, it must return the disclosed information to you with an explanation of why no referral to the agency was madeThe OSC must also advise you of any other avenues for disclosure of the information.

Even if OSC finds no fraud, waste, or abuse, you may still pursue a whistleblower claim if you are retaliated against.

If you are extremely concerned that a disclosure will result in retaliation, you should take steps to protect the confidentiality of the disclosure.

For a confidential whistleblower, it could be hard to prove retaliation if the offending management officials persuasively testify that they did not know of your whistleblowing. On the other hand, if you are a well-known whistleblower, adverse consequences are more easily attributable to the report you made. It is easier to establish that the official taking the action knew of your whistleblowing.

You should be prepared in advance to identify retaliation and quickly take steps to assert your rights in opposition to any retaliation.

Essential to your status as a protected whistleblower is that you have a “reasonable” belief that what you disclosed was a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority or a danger to public health or safety.

Even if your belief is ultimately proven wrong – that is, if no wrongdoing is found upon investigation – as long as you have a reasonable belief in the nature of the disclosure, you are protected from retaliation. However, mere speculation or subjective belief, without evidence, may not be enough to give you protection as a whistleblower.

“Prohibited personnel practices” — which include retaliation against a whistleblower – is the special name for illegal personnel actions against a federal employee. To determine whether what has happened to you qualifies as a prohibited personnel practice, you must first identify both the action and the reason why it was taken.

The law explaining prohibited personnel practices contains two lists. The first list, is a list of personnel actions, while the second is a list of illegal reasons for taking action. If you can pinpoint what the action was, on the first list, then pinpoint the reason for the action taken against you on the second list, you may then have grounds for a whistleblower complaint.

Note that even if all of the above can be shown, if the agency can show that they would have taken the same adverse employment action absent the whistleblowing, then the action will be sustained.

No, but you must show that the disclosure was a contributing factor in your employer’s decision. In order to show this, you can either prove a causal relationship between the time that you disclosed your report and the time of the agency’s action or inaction or through other evidence that establishes a causal relationship. A causal relationship is a link between the whistleblowing and the adverse employment action.

The WPA  provides the following list of actions by your employer which are considered personnel actions:

An appointmentA promotionAn adverse action or other disciplinary action or corrective actionA detail, transfer, or reassignmentA reinstatementA restorationA reemploymentA performance evaluationA decision concerning pay, benefits, or awards, concerning education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action.A decision to order psychiatric testing or examinationA non-disclosure agreement that does not notify the employee that it does not supersede whistleblower rights and protectionsAny other significant change in duties, responsibilities, or working conditions

The WPA  prohibits any employee who has the authority to take, direct others to take, recommend, or approve any personnel action from acting based upon:

Unlawful discrimination – race, color, religion, sex, national origin, age, disability, reprisal, marital status, political affiliationSolicitation or consideration of improper background references – a background reference must be based upon the personal knowledge or records of the person providing it and consists either of an evaluation of work performance, ability aptitude, general qualifications, or an evaluation of the individual’s character, loyalty, or suitability, or an agency cannot consider itCoercion of political activityObstruction of the right to compete – this means an agency shall not interfere with the fair consideration of a candidate during a competitive selection processInfluencing the withdrawal of applicants from competition – agencies shall not prevent the consideration of candidates, such as by failing to mail them inquiries concerning their availability for a position or falsely reporting their employment status during the competitive selection processUnauthorized preferences – agencies shall not intentionally take a personnel action in such a way as to give preference to a particular individual for the purpose of improving his or her prospects for employment at the agency, such as hiring under a temporary appointment to circumvent a competitive selection processNepotismRetaliation for whistleblowingReprisal for the exercise of an appeal right, or for cooperation with the OSC or an agency IG’s officeDiscrimination based on non-job related conductKnowingly taking, recommending, or approving – or failing to do – any personnel action if the taking of or failure to take such action would violate a veterans preference requirementTaking or failing to take any other personnel action if doing so would violate any law, rule, or regulation implementing or directly concerning the merit system principles

No, but you must show that the disclosure was a contributing factor in your employer’s decision. In order to show this, you can either prove a causal relationship between the time that you disclosed your report and the time of the agency’s action or inaction or through other evidence that establishes a causal relationship. A causal relationship is a link between the whistleblowing and the adverse employment action.

There are three options in pursuing a whistleblower retaliation case. The choice of how to proceed will affect where to file your complaint, how it will be investigated, and the amount of time it may take to come to fruition.

Option one – affirmative defense in MSPB appeal: If the agency takes an adverse action against you which is directly appealable to the Merit System Protection Board, or MSPB, you should raise your claim of reprisal for whistleblowing as an affirmative defense in an MSPB appeal. You can find more information on MSPB cases here.

Option two – Individual Right of Action: If you suffer a personnel action that cannot normally be appealed through the MSPB process, you may file an MSPB appeal called an “Individual Right of Action” (IRA) – but only after going through a complaint procedure with the Office of Special Counsel. You are required to start the OSC complaint process before filing an IRA case with the MSPB.

Option three – union grievance: If you are a unionized employee, you may file a grievance alleging reprisal for whistleblowing under the grievance and arbitration procedure of the union’s collective bargaining agreement with the agency.

You cannot file a union grievance and an MSPB appeal or OSC complaint over the same act of reprisal. Once you have elected to follow one route, you will be barred from pursuing other avenues of redress. Consult with a union representative or lawyer to investigate your options.

For more information about the various types of complaints and how you should pursue your whistleblower complaint, please see the Federal Employees Legal Survival Guide, 3rd edition, or contact an attorney who regularly represents federal employees.

There is no time limit within which you must bring your claim of a prohibited personnel practice to the OSC. The other processes listed above may have different deadlines. For more information about the various types of complaints and relevant deadlines, please see the Federal Employees Legal Survival Guide, 3rd edition, or contact an attorney who regularly represents federal employees.

However, you should not delay. Quick action shows that you are concerned. Delay will hurt your case as witnesses’ memories fade.

The remedy for a victim of a prohibited personnel practice is through corrective action. Congress in 1994, and again in 2012, amended the definition of corrective action to include the following possibilities:

Job restorationAttorneys feesBack pay and related benefitsMedical costsTravel expensesReasonable and foreseeable monetary damages caused by the prohibited practice, and costs incurred by any retaliatory investigation due to the claimCompensatory damages are authorized and recoverable against the United States government in prohibited personnel practice cases after WPEA

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed about how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean that the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort. It can assist you in documenting and finding the evidence you need to win your EEO case or help you decide to withdraw your EEO case. Finally, if you win your case before the EEOC, Administrative Judge, or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

Want to learn more about your rights as a federal employee? Order the Federal Employees Legal Survival Guide, published by Passman and Kaplan and Workplace Fairness.

No. Federal employees making allegations of discrimination by their agency, whether against themselves or others, are not entitled to whistleblower protections and cannot seek remedies through the same paths as others who shed a light on wrongdoing. See this Government Executive article for more information.

For more information on this topic see the Federal Employees Legal Survival Guide, 3rd Edition, by the attorneys at the law firm of Passman & Kaplan, P.C.