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The Whistleblower Protection Act

  • Mar 30 2024

What Is The Whistleblower Protection Act? 

The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 as amended (“WPA”), is a United States federal law that protects federal whistleblowers who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. As an employment lawyer will share, a federal agency violates the WPA if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant.

The Roles Of The Office Of Special Counsel And The Merit Systems Protection Board

The U.S. Office of Special Counsel is responsible for investigating and prosecuting alleged violations of the WPA. The OSC can pursue corrective action for whistleblowers and disciplinary measures against federal officers. 

The Merit Systems Protection Board is responsible for hearing and adjudicating Whistleblower Protection Act claims. Federal appellate courts may review board decisions and orders. 

Whistleblower Protection In The Workplace

The purpose of the WPA is to assist in the elimination of fraud, waste, abuse and unnecessary government spending by protecting employees who come forward with information about illegality, waste and corruption. Employees are often in the best positions to witness company wrongdoing. Without whistleblowers, fraud within corporations would likely go unchecked in many cases. 

Whistleblower protections are essential for ensuring a culture of accountability in the workplace. Employers should encourage employees to speak up when they see misconduct, without fear of retaliation. This does not always happen. 

Who’s Covered? 

The WPA covers most federal executive branch agencies and their employees. 

However, some agencies are exempt from the WPA, which generally excludes:

  • Government corporations;
  • The FBI, the CIA, 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; 
  • An executive agency that conducts foreign intelligence or counterintelligence activities; and
  • The Government Accountability Office.

Scope Of Protection

Our friends at Hoyer Law Group, PLLC know that the WPA protects employees’ rights to make protected disclosures. Retaliation based upon protected disclosures is prohibited. 

What is a Protected Disclosure?

Under the WPA, a protected disclosure is generally: “any disclosure of information by an employee that the employee reasonably believes evidences a violation of law, rule, or regulation or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 

Section 2302(b)(8)

Section 2302(b)(8) makes it unlawful for any employee “who has authority to take, direct others to take, recommend, or approve any personnel action” to use such authority to “tale or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of” a protected disclosure.

A “disclosure” is a formal or informal communication or transmission. Disclosure does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee has a “reasonable belief,” as defined below. 

What is a Reasonable Belief? 

A belief is “reasonable” if a reasonable person in the employee’s position could reasonably conclude that the actions evidenced a violation of the law, rule or regulation, or one of the other conditions listed above. 

What is an Abuse of Authority?

An abuse of authority occurs when there is “an arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or preferred other persons.” 

Section 2302(b)(9)

Section 2302(b)(9) protects employees’ rights to complain and engage in protected activities. It is separate from the protection of employees’ rights to disclose information, which is authorized by Section 2302(b)(8). 

What is “protected activity” generally? 

Section 2302(b)(9) generally protects employees from retaliation for exercising certain legal rights, cooperating with an inspector general or OSC investigation, or when they refuse to obey an order requiring them to violate a law. 

Protected activity is divided into four categories: 

  • Exercising appeal, complaint or grievance rights; 
  • Assisting with the exercise of appeal, complaint or grievance rights; 
  • Cooperating with investigators; and
  • Refusing to violate a law, rule or regulation. 

Important Exceptions: 

  • A disclosure is not protected under Section 2302(b)(8) if this disclosure is specifically prohibited by law, or the information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs; 
  • A disclosure is not protected if the disclosure is merely prohibited by rule or regulation, as doing so would allow agencies to self-insulate from the WPA; 
  • The WPA does not protect disclosures that are mere policy disagreements; prior to advising an employer that a disclosure was a mere policy disagreement;
  • Allegations of reprisal based upon equal employment opportunity or grievance disclosures are not considered whistleblowing;
  • Disclosures of trivial violations are not protected.  

Know Your Rights

It is important to know your rights. If you feel you have suffered due to violations of the Whistleblower Protection Act, contact a lawyer located near you for help.

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