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.

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.”

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

Intelligence community members are covered under the Intelligence Community Whistleblower Protection Act of 1988, the Intelligence Authorization Act for Fiscal Year 2014, and Presidential Directive 19. FBI whistleblowers have protection from retaliation under U.S. Code § 2303 and the FBI Whistleblower Protection Enhancement Act of 2016.

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 by a preponderance of the evidence 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.

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.