The Whistleblower Protection Act: What it is and how it protects federal workers
The Whistleblower Protection Act is a federal law that was enacted to protect federal employees who “blow the whistle” on illegal or other wrongful conduct in the federal government. The purpose of the law is exactly as it sounds—to encourage federal employees who see something to say something and to protect those who blow the whistle from being silenced or retaliated against. The purpose of this article is to give a general overview of the law and answer some common questions.
Who is considered a “whistleblower”?
The Whistleblower Protection Act applies to federal employees who report:
- Violation of a law, rule, or regulation;
- Gross mismanagement;
- Gross waste of funds;
- Abuse of authority; or
- A substantial and specific danger to public health and safety.
A federal employee who reports one of the above is considered a “whistleblower.” The Whistleblower Protection Act is intended to encourage federal employees to report these types of illegal and wrongful actions and to protect them from retaliation.
There are exceptions in the law for certain types of disclosures that are prohibited by law or Executive Order. This may include information that is classified or relates to national security.
Does it matter who a whistleblower reports the information to?
The Whistleblower Protection Act does not have a strict reporting requirement. There are various people a whistleblower can make a report to. As a general matter, a whistleblower should make the disclosure to (1) a supervisor or higher up in the employee’s reporting chain or (2) the Inspector General of the employee’s agency.
A report to a supervisor is always a protected disclosure. This is true even if it is to the same supervisor who engaged in the illegal or improper conduct at issue. Agency Inspectors General are also a great resource. The office of Inspector General exists in part for just this type of action.
Generally, a federal employee can also make a protected disclosure to the Office of Special Counsel or to Congress.
Can a whistleblower remain anonymous?
Yes. If an employee makes a protected disclosure to an agency Inspector General or the Office of Special Counsel, they can remain anonymous.
Does the whistleblower have to be right?
No. If an employee reports suspected illegality, gross mismanagement, waste, fraud, or abuse—based on a reasonable belief—the disclosure is protected even if the employee was ultimately mistaken or wrong.
The standard is whether the whistleblower had “reasonable belief” in the disclosure. The employee must have a reasonable belief that the information they report is true and constitutes conduct that is illegal, gross mismanagement, waste, fraud, or abuse. If there is a reasonable belief, the disclosure is protected.
What kind of protection does the Whistleblower Protection Act provide?
The Whistleblower Protection Act protects federal whistleblowers from retaliation. This means it protects the whistleblower from any adverse action by his or her agency that is based on the protected disclosure. This can include removal, suspension, demotion, or even reassignment if it is for a retaliatory purpose.
Even non-action regarding an employee can be considered retaliation. If, for example, an employee was to be promoted but after she blew the whistle she was not selected, this can be considered retaliation.
How is it determined whether an action is retaliation?
The standard for determining if an adverse action is retaliation is whether the whistleblowing activity was a “contributing factor” in the action. The employee’s disclosure does not have to be the only factor in the decision, or even the most important factor, but only a contributing factor. If it can be proven that the agency took the protected disclosure into account in deciding to take the adverse action against the employee, it was a contributing factor and the action should be considered retaliation.
What remedies are available to a federal whistleblower who has been retaliated against?
The Whistleblower Protection Act provides for a variety of remedies intended to protect the whistleblower. These include corrective action and monetary damages.
Corrective action can include returning an employee to a position they were removed from or a comparable position. In some cases, if the agency is in the process of taking action against an employee, the employee may be able to get an emergency stay of the action.
Corrective action may also include taking action against the supervisor who engaged in retaliation, which could include removal, reassignment, training, or other forms of discipline.
A whistleblower may be able to recover back pay if they were removed, suspended, or demoted. A whistleblower can also recover monetary damages intended to compensate them for mental and emotional distress that resulted from the retaliation.
Where does a federal whistleblower file a retaliation claim?
A federal whistleblower who has been retaliated against has several options for where to file a claim. If the adverse action is appealable to the Merit Systems Protection Board (MSPB), the employee may file an appeal and raise whistleblower retaliation as a defense to the action.
A federal whistleblower may also file a complaint with the Office of Special Counsel (OSC). OSC will investigate the claim. After this investigation, the employee can file an “Individual Right of Action” in the MSPB. The MSPB will decide the case and its decision may be appealed to the U.S. Court of Appeals for the Federal Circuit.
Should a federal whistleblower hire an attorney?
If a federal employee is considering making a report of illegal conduct, gross misconduct, waste, fraud, or abuse, they should consult with a lawyer who can help guide them through the process and protect their rights. If an employee has already made a protected disclosure and is experiencing retaliation, they should engage an attorney to bring a retaliation claim.
The attorneys of Bramnick Creed, LLC have a deep knowledge of federal employment law and extensive experience in representing federal employees. For more information about our federal employment practice go to our website at www.BramnickCreed.com or contact Joe Creed at (301) 760-3344 or JCreed@BramnickCreed.com.
 Congress amended the law in 2012 by the Whistleblower Protection Enhancement Act. In this article, the law is referred to as the Whistleblower Protection Act.