District of Columbia

A. Who Is Covered?

Covered employers under the DCWPA include all District government agencies, including subordinate agencies, independent agencies, the District of Columbia Board of Education, the Board of Trustees of the University of the District of Columbia, the District of Columbia Housing Authority, and the Metropolitan Police Department, but excluding the Council of the District of Columbia. A covered employee is any person who is a former or current District employee, or an applicant for employment by the District government.

B. What Activity Is Protected Against Retaliation?

Protected activity includes refusal to comply with an illegal order or disclosure of information about unethical or illegal conduct. A protected disclosure is defined as any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes evidences:

1. Gross mismanagement;
2. Gross misuse or waste of public resources or funds;
3. Abuse of authority in connection with the administration of a public program or the execution of a public contract;
4. A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or
5. A substantial and specific danger to the public health and safety.

Note that employees who suffer retaliation in violation of the DCWPA must file a civil action in D.C. Superior Court within one year of the violation or when the employee becomes aware of the violation.

C. What Are The Rights And Responsibilities Of District Employees And Supervisors Under The DCWPA?

In addition to extending whistleblower protections, the DCWPA also outlines rights and responsibilities of District government employees. Employees are entitled the following protections:

• The right to freely express opinions on all public issues;
• The right to disclose corruption, dishonesty, incompetence, or administrative failures;
• The right to communicate freely and openly with members of the D.C. Council;
• The right to assemble in public places to discuss matters of personal or public interest and the right to notify, on their own time, fellow employees and the public of these meetings;
• The right to humane, dignified, and reasonable conditions of employment;
• The right to individual privacy, including the right to access his or her own personnel and medical report files.

The DCWPA also obligates every District government employee to make protected disclosures as soon as the employee becomes aware of the violation or misuse of government resources. Furthermore, every supervisor is also compelled to make protected disclosures involving any violation of law, rule, regulation or contract as soon as s/he becomes aware of the violation. If a supervisor fails to do so, or is found to have retaliated against an employee for engaging in protected actvity, s/he will be subject to administrative action, including termination.

D. What Retaliation Is Prohibited?

Under the DCWPA, a supervisor cannot “threaten to take or take a prohibited personnel action or otherwise retaliate against” an employee who makes a protected disclosure or refuses to comply with an illegal order. Prohibited personnel action may include:

• recommended, threatened, or actual termination, demotion, suspension, or reprimand
• involuntary transfers
• referral for psychiatric or psychological counseling
• failure to promote or hire or take other favorable personnel action.

E. How Does A Potential Whistleblower Prove Retaliation?

To prevail in a DCWPA case, an employee must establish by a preponderance of the evidence that his or her protected activity was a “contributing factor” to the prohibited personnel action taken against the employee.

F. What Is The Employer’s Burden Of Proof?

If a plaintiff successfully establishes that his or her protected activity was a “contributing factor” to the prohibited personnel action, the employing District agency must then prove by “clear and convincing evidence” that it would have taken the same personnel action for legitimate, independent reasons even if the employee had not engaged in protected activity.

G. What Remedies Are Available To A Successful Claimant?

If the evidence supports your whistleblower claim under the DCWPA, you may be entitled to remedies that include:

• Injuntive relief
• Reinstatement with previous seniority and benefits
• Back pay with interest
• Compensatory damages, including compensation for reasonable attorney’s fees.

H. How Do I Decide Whether And How To Report Unlawful Conduct?

Whether to report concerns of unethical or illegal conduct — and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the DCWPA provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks, LLP for an evaluation of your whistleblower case.