What is the Whistleblower Protection Act?

The Whistleblower Protection Act of 1989 is a law that protects U.S. federal government employees who disclose information they reasonably believe points to a violation of the law. Such violations include misconduct, waste, or an abuse of power, as well as public health and safety dangers.

The Whistleblower Protection Act prohibits U.S. government agencies from retaliating against federal employees for their disclosures. Retaliation might include terminating employment, demotions, pay cuts, or other forms of ostracism and harassment. Those who experience such retaliation may seek legal remedies.

The Whistleblower Protection Act covers whistleblowers who work for the government, except intelligence community whistleblowers.

A protected disclosure is an activity which aims to expose fraud, misconduct, waste, or abuse.

The WPA allows federal employees to engage in such activities without fear of retaliation, which is unfortunately quite common. But not all disclosures are protected. They must meet the following requirements for a whistleblower to receive protection:

• Violations of the Law: the disclosure must point to clear violations of a federal law, statute, or regulation. For example, negligence or safety violations, or mismanagement of government resources and/or programs.
• Misusing Funds: the negligent and careless misuse of government funds, which drains taxpayer dollars and future funding.
• Abuse of Power: abusing one’s position for personal gain or to harm others with a careless disregard for consequences.
• Risk to Public Safety: making decisions that pose a serious threat to public safety.

It’s important to note that for the government to enforce protection, whistleblowers only need to supply reasonable belief that one of the above exists. They don’t have to prove wrongdoing, but they must have at least some credible information pointing to the issue at hand.

The WPA protects whistleblowers against retaliation for engaging in a protected activity such as whistleblowing. This means an employer cannot retaliate against a whistleblower for reporting a violation of a certain law, statute, or regulation.

Some of the most common forms of retaliation might include the following:

• Personnel Actions: Demotion, termination, denial of promotion, transfer to a less desirable position, or changes in work hours.
• Negative Performance Reviews: Unfair or inaccurate performance evaluations designed to punish whistleblowers.
• Reduced Responsibilities: Stripping away important duties or assignments, effectively sidelining the whistleblower.
• Hostile Work Environment: Creating a hostile or intimidating work atmosphere through excessive criticism, social isolation, or even threats.

Unfortunately, retaliation can take many forms. While the WPA protects whistleblowers, they may need to demonstrate a connection between their whistleblowing activity and the negative action taken against them. In retaliation cases, whistleblowers are encouraged to speak with a whistleblower rights attorney who can help in these matters.

In 1978 Congress passed the Whistleblower Protection Act, as part of the Civil Service Reform Act, with strong bipartisan support. It has been amended three times since then, once in 1989, 1994, and recently in 2012. Each amendment has significantly impacted whistleblowing, with the most recent expanding the scope of protection and judicial review.

Protecting whistleblowers was an objective of the Civil Service Reform Act of 1978. In this act, Congress enacted a statute that was intended to protect Federal employees from being punished, or retaliated against, for engaging in a protected activity such as reporting misconduct.

His amendment separates the Office of Special Counsel from the Merit Systems Protection Board and gives Special Counsel the ability to act as legal counsel on behalf of federal employees reporting violations. Also, it prohibits retaliation against most executive branch employees when they blow the whistle on significant agency wrongdoing or when they engage in protected conduct.

This amendment clarifies language regarding who’s protected and further defines “disclosures” and requirements for protection. The WPA protects “any” disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which the MSPB remains blind. The only restrictions are for classified information or material, the release of which is expressly prohibited by statute. Employees must disclose that information through confidential channels to maintain protection; otherwise, there are no exceptions.

This amendment expands the definition of disclosures to include any made to a supervisor, disclosures revealing information that had been disclosed already, disclosures not made in writing, or disclosures made while the employee was off-duty. The WPEA also made it clear that disclosures could not be excluded because of the “employee or applicant’s motive for making the disclosure” or because of the “amount of time which has passed since the occurrence of the events described in the disclosure.”

If you’ve witness fraud, waste, or abuse within the federal government, knowing how to report it under the WPA is critical. Depending on your status, there are different ways to do this:

• Report to Your Supervisor: this route is not recommended, as there is a long history of retaliation. However, a direct supervisor may have the power to address the problem and prevent I from happening again.
• Report to the Office of Special Counsel (OSC): this is the agency with the U.S. Merit Systems Protection Board (MSPB) who focuses on whistleblower retaliation claims coming from federal employees. They have an online complaint form, or the option to call their hotline or send mail (via post).
• Inspector General: federal agencies generally have their own Inspector General, who will investigate suspected misconduct. This is a good option if your supervisor is involved, as they are the ones who are supposed to resolve such issues.

Whatever channel you choose, it’s important to maintain a record of your activity. This well help support your case and provide further support regarding your disclosure. Whistleblowers may disclose information anonymously, but it may severely delay investigations. The OSC website offers detailed information on whistleblower rights and reporting procedures: https://osc.gov/.

Whistleblowers must supply the burden of proof that the disclosure they made directly resulted in retaliation. Even if the employee is mistaken in what they disclose, they will still be protected if their mistaken belief is reasonable under the circumstances. Nonetheless, they must prove that they made a protected disclosure under the law. If the agency officials took, threatened, or failed to take a personnel action following the disclosure, the whistleblower must prove a causal connection between the disclosure and the personnel action.

If the whistleblower meets the burden of proof, it’s then up to the agency to prove that the action against the whistleblower was independent of the disclosure. Within 240 days of receipt of a complaint, the OSC must determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to happen. If the MSPB finds that retaliation has occurred, the whistleblower may be reinstated to their former position and receive back pay with benefits, and other damages, such as (including interest, reasonable expert witness fees, attorney fees, and associated costs). Following verification of the underlying wrongdoing, the case may lead to other policy changes or corrective actions.

The Office of Special Counsel has jurisdiction over retaliation against most government employees and former federal employees in the executive branch. However, there are some executive branch employees are excluded from WPA protections:

• Employees of the 17 different intelligence community “elements” and the FBI
• Political appointees (e.g., federal inspectors general)
• Non-career Senior Executive Service employees
• Uniformed military service members
• Members of the U.S. Public Health Service Commissioned Corps
• Employees of the U.S. Postal Service

Although the WPA provides protection for most federal employees, there are some exclusions. It does not cover intelligence community whistleblowers or those serving under the President of the United States. Similarly, disclosures containing classified information may also not be covered.

It’s important to consult with an attorney specializing in whistleblower rights if you have any questions regarding the specific applicability of the WPA to your situation.

Seeking relief from retaliation is highly complex. Along the whistleblowing process are many different parties, all with varying limitations for filing claims and appeals. If you are a federal employee who is thinking of blowing the whistle on a violation of law, misconduct, gross waste of funds, abuse of power, or a health danger, we suggest hiring a whistleblower attorney.