Fast Legal Answers

Fast Legal Answers: Federal Whistleblower Protection Act

Mike Ivancie, Esq.

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

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

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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Fast Legal Answers: Reasonable Accommodations

Mike Ivancie, Esq.

For the first, in what is likely to be a continuing series titled Fast Legal Answers, I am going to give a quick and simple overview of a specific legal issue or topic. These article will be short, under 500 words, and will be as direct as possible.

Today I am going to talk about reasonable accommodations.

If you want more depth, I suggest you check out our legal guides section. Some of the articles there are huge and provide all the detail you could ever want.

This article will focus on reasonable accommodations in the federal sector. But the principles have general application.

Reasonable Accommodations

 

What are they?

A reasonable accommodation (RA) is a change to a job, work environment, or the way work is performed, that allows an individual with a disability to apply for or perform a job.

What is the basic rule?

An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. 1630.9. The Commission also notes that an employee must show a nexus between the disabling condition and the requested accommodation. See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).

Ok, explain that in non-legal speak please?

An employer must provide a RA if:

  1. The employee has a disability.
  2. The employee can perform the job normally with an accommodation (otherwise qualified individual).
  3. And that providing an accommodation wouldn’t be HUGE burden on the agency.

Does my employer have to give the accommodation that I ask for?

Nope. The agency just has to give you a reasonable accommodation that “enable[s] [you] to enjoy the same benefits and privileges of the job as enjoyed by non-disabled individuals.” Chausse v. National Security Agency, EEOC Appeal No. 01A32552 (June 25, 2003).

So, for example, if you are blind and need help using your computer, you may request an employee read the screen for you and help you use the mouse and keyboard. Instead, the agency provides you with accessibility software that gives verbal cues and allows you to interact with, and utilize, the computer. In this instance, the accommodation isn’t what you asked for, but it is still likely a reasonable one.

What if my employer refused to accommodate me?

You might have a discrimination case based on your disability, assuming you meet the criteria above, and any potential accommodation wouldn’t put an undue hardship on the agency.

You should be aware of the short 45-day timeline to file a claim with your EEOC counselor. Don’t wait to bring a failure to accommodate to the attention of your EEO office, otherwise you may lose your right to file.

If you think you might have a case, you should consult with an attorney. Reasonable accommodation cases are very fact specific so there is no simple formulaic way to know if you have been the victim of discrimination based on a failure to accommodate.

What constitutes undue hardship?

This too, is a fact-specific inquiry. It really turns on the specifics of your case. Large agencies with huge budgets may have less leeway than a smaller agency squeaking bye. The EEOC suggests the following factors are a good place to start in determining whether there is undue hardship:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  • the impact of the accommodation on the operation of the facility

EEOC Enforcement Guidance, (citing 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997)).

Conclusion

I hope this article helped you understand how reasonable accommodations are analyzed. I’m nearly 200 words over my limit. I guess I’ll have to work on keeping it shorter for my next article in the Fast Legal Answers series.

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