What is Whistleblowing?
The Whistleblower Protection Act (WPA) protects federal employees who make disclosures which the employee reasonably believes evidence (does not have to actually be true):
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- Any violation of any law, rule, or regulation;
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- Gross mismanagement, a gross waste of funds, an abuse of authority; or
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- A substantial and specific danger to public health or safety.
As long as the disclosure is not prohibited by law (for example, laws prohibiting the disclosure of critical infrastructure information) or required by executive order to be kept secret (i.e. classified).[5 U.S.C. Sec. 2302(b)(8)]
In addition, the Whistleblower Protection Enhancement Act, enacted in made claims of retaliation for any of the following subject to the same procedures and burdens of proof as whistleblower claims:
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- Testimony or assistance in another employee’s complaint, grievance or appeal on any subject;
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- Testifying for or lawfully assisting the Special Counsel or an Inspector General;
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- Refusing to obey an order that would require the employee to violate the law; or
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- A complaint, grievance or appeal by the employee with regard to remedying whistleblower retaliation. [5 U.S.C. Sec 2302 (b)(9)]
There is a critical distinction between retaliation for whistleblowing and retaliation for doing your job when doing so is politically inconvenient. Other types of disclosures are not protected under the WPA, though they may be protected under whistleblower provisions in laws administered by the Department of Labor, which apply to private company employees, local (but not state) government employees and in some cases federal employees.
Whistleblower Laws Protect Against Retaliation on the Job
Whistleblowing is a defense to an adverse personnel action – such as firing, demotion, suspension, a poor performance evaluation, etc. Even if an employee has engaged in misconduct or performed poorly, an agency may not impose discipline if it is motivated at least in part by retaliation for whistleblowing. Nor may an agency impose changes in working conditions as retaliation for whistleblowing.
Adverse employment actions also may not be based on other practices such as race or gender discrimination, or retaliation for participation in EEO proceedings.
Whistleblower Protection Enhancement Act (WPEA 2012)
Enacted in 2012, the Whistleblower Protection Enhancement Act strengthened the protections for federal employees who disclose evidence of waste, fraud, or abuse by –
- Reversing bad precedents limiting what is protected, so the law now covers;
- Disclosures made to supervisors and persons who participated in the disclosed activities;
- Information that had been previously disclosed;
- Disclosures regardless of the employee’s motives for making them;
- Disclosures not made in writing;
- Disclosures made when the employee was off duty;
- Disclosures regardless of the amount of time passed since the events described in the disclosure; and
- Disclosures made in accordance with ordinary job duties.
- Adding compensatory damages to the relief available.
The Merit Systems Protections Board (MSPB) has found WPEA provisions defining protected disclosures to apply retroactively to cases pending when WPEA became law, but new availability of compensatory damages not retroactive to pending cases.
