Fast Legal Answers: Federal Whistleblower Protection Act

Time for my second article in the Fast Legal Answers series. Today, I’ll be talking about the Federal Whistleblower Protection Act (WPA).

Whistleblower Protection Act

 

What is the purpose of the WPA?

At its core, the WPA is intended to prevent fraud, waste, and abuse in the federal government by encouraging employees to report violations and the mismanagement of public resources. The act does this by assuring whistleblowers protection from retaliation for disclosures that the make.

What are the core elements of a whistleblower case?

The key criteria present in a whistleblower case are that: 1) a personnel action is taken against 2) a covered employee because they made a 3) protected disclosure.

 What is a personnel action?

A personnel action is most commonly understood as it relates to the selection, or non-selection of an employee but it also covers other issues such as promotion or any decision related to pay or benefits. More specifically, the statute provides the following definition:

(A) “personnel action” means—

(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;

5 U.S. Code § 2302(a)(2)(A)

 Who is considered a covered employee?

A covered employee is defined by 5 U.S. Code § 2302(a)(2)(B). Generally, covered employees include current and former federal employees along with applicants to positions in the executive branch both in competitive and executive service.  Senior Executive Service positions are covered as well. Note that some agencies, specifically those involved in foreign and counter-intelligence operations, are excluded. Accordingly, employees from the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office are not considered covered employees. 5 U.S. Code § 2302(a)(2)(C)(ii)(I).

What sort of protected disclosures are covered by the WPA?

Covered employees are protected when they make any disclosure of information that they reasonably believe evidences: (1) a violation of any law, rule, or regulation; (2) gross mismanagement; (3) a gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. See 5 U.S. Code § 2302(b)(8).

Who do I have to make the disclosure to?

Typically, a disclosure to the individual involved in the violation is not sufficient to trigger whistleblower protection. The law has been interpreted to allow disclosure to a broad range of individuals. For example, disclosure can be made up the chain of command, to the heads of agencies and to members of congress. The party receiving the disclosure doesn’t need to be someone who can immediately stop or remedy the violation. So, if your supervisor is stealing money from your agency you reporting your knowledge of that misconduct back to the same supervisor wouldn’t be sufficient, but contacting his supervisor, or internal affairs, would.

Do I have to be the one who made the disclosure?

No. Whistleblower protection can be extended to individuals perceived as whistleblowers and individuals closely associated with actual whistleblowers. See Shelly v. Dept. of Treasury, 75 MSPR 411 (WPA protection attaches when employee “was perceived to have made, or was closely associated with someone who made, a disclosure protected under 5 U.S.C. § 2302(b)(8); the agency took or failed to take, or threatened to take or fail to take, a “personnel action” listed at 5 U.S.C. § 2302(a)(2)(A); and the appellant exhausted proceedings before OSC.”)

Who do I contact if I have been a victim of reprisal for my whistleblowing activities to?

The Office of Special Counsel (OSC). This is their standard form for reporting unlawful reprisal for whistleblowing activities. After your file your claim with the OSC they will investigate it. Then they may initiate an action on your behalf or issue you a right-to-file letter which allows you to pursue your whistleblowing case individually. It is critical that you make initial contact with the OSC and exhaust your administrative options prior to filing a formal action.

Where will me case be heard?

Cases are before the Merit Systems Protection Board. You can learn more about the MSPB at our MSPB law and discipline case legal guide.

Conclusion

I hope this quick overview of the WPA has answered some of the general questions you might have about whistleblower protections and whether or not you may qualify.

Note that nothing can substitute for specific legal advice tailored to the facts of your case. If you have further questions feel free to call for a free consultation.

If you love reading about the WPA, or want some materials to treat your insomnia, here are some additional resources related to the WPA: