When passing the Whistleblower Protection Act of 1989 (“WPA”), Congress stated that the intent of the legislation “was to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government.” The Act, along with the Whistleblower Protection Enhancement Act ("WPEA"), protects most federal executive branch employees from having a personnel action taken against them because of a protected disclosure.
A. Who Is Covered?
Generally, current employees, former employees, or applicants for employment to positions in the executive branch of government in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees. However, exceptions exist for various agencies because of their “confidential, policy-determining, policymaking, or policy-advocating character,” including the FBI, CIA, NSA and others. However, federal employees outside of the executive branch may have whistleblower protections under other federal statues, such as the laws governing nuclear power or environmental pollution.
B. What Activity Is Protected Against Retaliation?
“[A]ny disclosure of information” that a covered employee “reasonably believes” evidences “a violation of any law, rule, or regulation” or evidences “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” is protected on the condition that the disclosure is not prohibited by law nor required to be kept secret by Executive Order.
C. What Personnel Actions Qualify As Actionable Retaliation?
The WPA protects employees from reprisals in the form of an agency taking or failing to take a “personnel action.” This encompasses a broad range of actions by an agency having a negative or adverse impact on the employee. The statute specifically defines the term “personnel action” to include 11 areas of agency activity: The right to freely express opinions on all public issues;
- an appointment;
- a promotion;
- an action under chapter 75 of this title or other disciplinary or corrective action;
- a detail, transfer, or reassignment;
- a reinstatement;
- a restoration;
- a reemployment;a performance evaluation under chapter 43 of this title;
- 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;
- a decision to order psychiatric testing or examination; and
- any other significant change in duties, responsibilities, or working conditions.
D. How Does A Potential Whistleblower Prove Retaliation?
To prevail in a WPA case, a federal executive branch employee must show that a personnel action was taken because of a protected disclosure made by a covered employee.
E. What Remedies Are Available To A Successful Claimant?
If the evidence supports your whistleblower claim under the WPA, you may be entitled to remedies that include:
- injunctive relief;
- reinstatement with previous seniority and benefits;
- back pay with interest; and
- compensatory damages, including compensation for reasonable attorney’s fees.
F. 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 supervisor’s unlawful practices can be a career-ending move. However, the WPA 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.
