Whistleblower Protection for Federal Government Employees

Background

In 1978, Congress passed the Whistleblower Protection Act (WPA) to prevent federal agencies from taking negative employment actions against employees based upon certain "whistleblowing" activities. The WPA has since been amended several times to clarify the protections offered. Although Congress has recently debated further bills that would strengthen the protections afforded by the WPA, those have yet to be enacted.

Under the WPA, a federal agency violates the law if it takes (or fails to take) personnel actions with respect to employees or applicants because of protected "whistleblowing activities."

Protected Disclosures

Generally, whistleblowing involves an employee making a "protected disclosure." Under the WPA, protected disclosures include allegations relating to:

• violations of a law, rule or regulation;
• gross mismanagement;
• gross waste of funds;
• an abuse of authority; or
• a substantial and specific danger to public health or safety.

Although an employee need not prove that the allegations were true, he or she must show that they were made pursuant to a reasonable belief as to their truth. The United States Office of Special Counsel (OSC) has a special unit that receives and investigates these protected disclosures from federal employees. Protected disclosures, however, need not have been made to the OSC for the WPA to apply.

WPA Claims

The WPA specifies that employees have a private right of action against federal employers who retaliate against them because of whistleblowing activities. The employee must first file his or her claim with the OSC. Either party to the action can appeal a decision by the OSC to the Merit Systems Protection Board (MSPB). Final MSPB decisions may usually be reviewed by Federal Court of Appeals for the Federal Circuit.

In order to prevail on a WPA claim, the employee or applicant must be able to show that:

1. the acting official had the authority to take, recommend, or approve personnel actions,
2. the employee or applicant made a "protected disclosure,"
3. the acting official used his or her authority to take an adverse personnel action against the aggrieved employee or applicant; and
4. the protected disclosure was a contributing factor to decision to take the personnel action.

Generally, adverse personnel actions include geographic transfers, demotions, reductions in grade, revocations of job titles, terminations, refusals to hire or appoint, and suspensions.

Courts have also held that the official only needs to believe that the employee or applicant made the protected disclosure. If the belief is there, the employee or applicant need make no actual proof of the disclosure.

If the employee is able to establish the above elements of a whistleblower claim by a preponderance of the evidence, meaning that they "more likely than not" are true, the employer then has the burden to rebut the claims with clear and convincing evidence.

Corrective Actions

If an employee is able to establish his or her whistleblower claim, corrective action, such as reinstatement or back pay may be taken. Furthermore, disciplinary action will likely be taken against the violator.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.