Another look at federal employee whistleblower rights and remedies
Federal employees have legal protections against retaliation on the job after they reveal or report unlawful activity within the government.
Americans are currently saturated with news of the story of a federal employee who raised issues that concerned them about a certain presidential phone call. Everyone is calling this employee the whistleblower, and many are worried about that person’s protection.
Which raises the question: What is a federal employee whistleblower and what does federal law say about them?
Most sources credit Ralph Nader with using the term in the 1960s in the context of an insider of an organization bringing to light – “blowing the whistle” – illegal or unethical activity otherwise hidden within the entity. In 1989, Congress passed the Whistleblower Protection Act, called the WPA, the main federal law that protects a federal employee who speaks up about illegal activity they perceive within the federal government, often in the agency or department within which they serve.
What are the main provisions of the WPA?
Basically, the WPA prohibits a federal employee with authority to take personnel actions impacting other employees (managers, supervisors and others in authority) from taking negative actions against an employee for particular reasons, including protected whistleblowing activity. Negative personnel actions encompass a wide range of acts from termination or demotion, to an inaccurate, negative performance review or a dock in pay or loss of benefits, and others.
Whistleblower protections extend to current or former federal employees and to federal job applicants. Protected federal employee whistleblower activities include any disclosure of information they reasonably think shows:
- Violation of law, rule or regulation
- Gross mismanagement
- Gross waste of funds
- Abuse of authority
- Substantial, specific threat of harm to public health or public safety
The nature of a disclosure to any source must not be otherwise prohibited from disclosure by law or executive order, unless it is to the Office of Special Counsel or OSC, or to the Inspector General of a federal agency or to an agency employee designated to hear such complaints.
The OSC will review reported information and refer the matter to the involved agency for investigation and a report back within 60 days.
Retaliation against federal employee whistleblowers
The law also protects a federal employee from negative personnel action for exercising “appeal, complaint, or grievance” rights regarding violation of whistleblower protections.
Federal employee whistleblowers may also report suspected retaliation to the OSC for investigation and corrective action. The whistleblower must show they made a valid disclosure, that the person who took adverse personnel action knew about the disclosure and the disclosure contributed to the adverse personnel action. If this type of complaint is successful, the employee may get lost wages and benefits, legal fees and correction of their personnel records, among other remedies.
It is a good idea for any federal employee contemplating revealing whistleblower-protected information to speak with an experienced attorney first to understand the ramifications as well as their legal rights to protection. A lawyer can represent the federal employee through all stages of a disclosure, including bringing a retaliation complaint in OSC.
This is a broad overview of a detailed area of federal law. Legal counsel should be consulted for a detailed analysis of the particular circumstances of a potential whistleblower. For example, some federal employees do not fall under the WPA and some kinds of disclosures are unprotected or illegal. There may also be deadlines for requesting some legal remedies for retaliation.
The attorneys at The Devadoss Law Firm, P.L.L.C., with offices in Dallas, Atlanta and Washington D.C. represent federal government employee whistleblowers across the country.