Whistleblowing is a critical tool that allows employees with inside knowledge to report malfeasance by government actors. When done correctly, whistleblowing ensures abusive, wasteful, and even dangerous governmental activities come to light and are addressed.
When a federal employee feels compelled to “blow the whistle,” they generally enjoy protection from agency retaliation. This means an agency is prohibited from using someone’s whistleblowing as a basis to take negative personnel actions against them, including but not limited to disciplinary action, demotion, involuntary reassignment, negative performance evaluations, or any other significant change in duties, responsibilities, or working conditions.
Federal employees can empower themselves by knowing their duties and rights related to reporting fraud, waste, or abuse within their agency.
Who is protected as a whistleblower?
The Whistleblower Protection Act (WPA) and the Whistleblower Protection Enhancement Act (WPEA) protect most federal employees from retaliation. These laws protect employees at most federal executive agencies, except for those who work at intelligence agencies (e.g., the Central Intelligence Agency and the National Security Agency), the Federal Bureau of Investigations (FBI), or the Government Accountability Office. Employees of intelligence agencies and the FBI have separate whistleblower protections than those afforded under the WPA. Government contractors are protected under the WPA and WPEA but are limited in who they can make disclosures to, as discussed below.
What counts as whistleblowing?
Whistleblowing occurs when a federal employee makes what is known as a “protected disclosure” of information or participates in “protected activity.”
Protected Disclosures
Under 5 C.F.R. § 2635.101(b)(11) and Executive Order 12731, federal employees have an obligation to report “waste, fraud, abuse, and corruption.” Federal employees who are attorneys may have additional obligations to report certain wrongdoing by other attorneys under professional rules that govern attorney conduct, but this article does not address those duties.
In addition to the requirement that federal employees report the categories outlined above, they also have the right to make protected disclosures about wrongdoing outside of the explicit requirements of 5 C.F.R. § 2635.101(b)(11). A protected disclosure is an employee’s communication or transmission of information that the employee reasonably believes demonstrates:
- a violation of any law, rule, or regulation;
- gross mismanagement;
- a gross waste of funds;
- an abuse of authority; or
- a substantial and specific danger to public health or safety.
To enjoy whistleblower protections, an employee need not prove that any of these issues actually occurred—the employee need only hold a reasonable belief that the incident was occurring or about to occur.
Federal employees have a right to report an actual or suspected “violation of any law, rule, or regulation.” Such laws, rules, and regulations include but are not limited to government ethics laws, regulations like the Federal Acquisition Regulation (FAR), and rules like policy memoranda or agency ethics rules. An employee can disclose what they reasonably believe is a potential, not necessarily completed, violation of law, rule, or regulation to be protected. The potential violation must be “real and immediate,” which incentivizes employees to report wrongdoing before it occurs, not just after.
The second category of protected disclosures is “gross mismanagement,” which means management action or inaction that is likely to jeopardize the agency’s mission. This action or inaction by management must not be debatable by reasonable people as a matter of policy or normal decision-making. Real-world examples of gross mismanagement include a supervisor’s failure to investigate widespread cash theft by agency employees and a manager’s failure to properly redeem $90,000 in discount coupons. But disagreeing with how a supervisor assigns tasks, is unlikely to qualify as “gross mismanagement” because it is not likely to compromise the agency’s ability to fulfil its mission.
A “gross waste of funds” is an unreasonably costly expense that is outweighed by the benefit to the government. Like gross mismanagement, a gross waste of funds is not a debatable expense. The expenditure must be so out of proportion that a reasonable person would know that it is wrong. A real-world example includes a facility’s unnecessary purchase of a new $15,000 fuel management system when the prior one was relatively new and provided the same information as the $15,000 one.
An “abuse of authority” occurs when a federal employee exercises power in an arbitrary or capricious way that harms the rights of any person or that personally benefits the employee or their friends. In some cases, a supervisor’s threats and intimidation can represent an abuse of authority. For example, harassing and hazing law enforcement agents during field training has been found to constitute an abuse of authority.
Disclosures of “a substantial and specific danger to public health or safety” involve potential harm or danger that is significant and likely to occur soon. Because agencies have a variety of missions, disclosures of these kind can vary widely. Real-world examples of protected disclosures include an employee raising concerns with a supervisor that hospital nurses lacked adequate training, talking to the press about increased traffic accidents when fewer officers were on patrol, and reporting that a hospital was managing water leaks in a way that endangered hospital staff.
The WPEA specifically established that a disclosure is protected even when:
- the disclosure is made to a supervisor or individual who participated in the activity that is the subject of the disclosure;
- the disclosure reveals information that has been previously disclosed;
- the disclosure is not made in writing;
- the disclosure is made while the employee is off duty; or
- time has passed since the occurrence of the events described in the disclosure.
Protected disclosures can be made to any audience including a co-worker, supervisor, Congress, or even the media. However, under the WPA and WPEA federal contractors can only make disclosures to limited audiences including a member of Congress, an Inspector General, the Government Accountability Office, an authorized official of the Department of Justice or other law enforcement agency, or a management official of the contractor who has the responsibility to investigate, discover, or address misconduct. The employee’s or contractor’s motive for making a disclosure is irrelevant to whether they enjoy whistleblower protections.
What Disclosures are Not Protected?
Under the WPA and WPEA, disclosures are not protected if they are specifically prohibited by law or if, per Executive Order, the information must be kept secret in the interest of national defense or the conduct of foreign affairs. If an allegation of wrongdoing involves classified information, the employee should ensure they are only making a disclosure through the proper channels, generally with the agency’s Office of the Inspector General, the Office of Special Counsel (OSC), or a designated agency official; certain members of Congress are also authorized to receive disclosures of classified information.
What Activities are Protected?
Certain activities are protected under the WPA and WPEA to encourage employees to use established reporting processes to remedy violations of whistleblower rights and to protect employees from retaliation based on their participation in these processes. Therefore, in addition to protected disclosures, covered federal employees are entitled to whistleblower protections when they participate in certain protected activities like:
- the exercise of any appeal, complaint, or grievance right related to remedying a whistleblower violation;
- testifying for or otherwise lawfully assisting any individual in the exercise of any right concerning a protected whistleblowing matter;
- cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; and
- refusing to obey an order that would require the individual to violate a law
How do I challenge whistleblower retaliation?
If an agency retaliates against an individual based on their whistleblowing or protected activity, the individual can take one of two potential actions, depending on the personnel action the agency has taken. It’s important to know the correct agency to file an appeal or complaint with because an employee is bound by their “election of forum”—the first place an employee files determines where the filing is processed.
If the agency takes the following actions against a non-probationary employee, the individual can directly file an appeal with the MSPB: removal, suspension of more than 14 days, reduction in grade or pay, furlough of 30 days or less for cause that will promote the efficiency of service, removal or reduction in grade for unacceptable performance, denial of within-grade pay increase, reduction-in-force action, and denial of restoration or reemployment rights.
If the agency takes an adverse action other than those listed above, the individual must first file a complaint with the Office of Special Counsel. After OSC receives a complaint, it is required to investigate the allegation to determine whether there are reasonable grounds to believe that a prohibited personnel practice occurred. If OSC determines that there was whistleblower retaliation, it can recommend corrective action (e.g., reinstatement or back pay) and request that the MSPB enforce that corrective action. However, if OSC terminates its investigation without recommending corrective actions or 120 days have passed since the complaint was originally filed, the employee can appeal the OSC complaint to the MSPB for adjudication. The MSPB can only consider issues that were brought before OSC, and it cannot rely on OSC’s determination to assess the validity of the claim.
To prevail in a whistleblower case before the MSPB, an individual must generally prove their whistleblowing or protected activity was a “contributing factor” to the agency’s decision to take a personnel action against them. The “contributing factor” standard is easier to meet than the requirement of “but for” causation under other retaliation and antidiscrimination provisions. If an individual establishes what is known as a “prima facie” or preliminary case that warrants further legal proceedings, the burden shifts to the agency to establish by “clear and convincing” evidence (a higher standard than in other retaliation or antidiscrimination laws) that it would have taken the personnel action regardless of the whistleblowing activity. If the agency cannot satisfy this standard, the whistleblower wins.
If an individual succeeds in their case before the MSPB or OSC, they can be entitled to damages, attorney’s fees, and other types of relief, including reinstatement if one was terminated, for the harm they suffered due to whistleblower retaliation.
This article solely provides general information and is not intended as legal advice. If you need legal advice or representation regarding whistleblowing or retaliation for previous whistleblowing, Atkinson Law Group may be able to help; you can contact us here for a consultation.
Thanks to Bekah Bass, Associate, for her contributions to this article.