Federal employee whistleblower retaliation remedies before the OSC
An employee who reports wrongdoing at their federal-agency employer and experiences retaliation for whistleblowing has legal remedies.
Are you a federal worker who has blown the whistle about something that was illegal, unethical, unsafe or otherwise wrong in your workplace? Did you report your concerns and observations to your manager or to an official within your agency? Or were things serious enough that you went to an outside government agency or to law enforcement, or filed a complaint?
If so, strong federal protections under the Whistleblower Protection Act (WPA) for federal-employee whistleblowers likely apply to your situation and may provide you a legal remedy if you have experienced reprisals or retaliatory disclosure for your whistleblowing efforts.
Retaliation examples include wrongful discharge, suspension, loss of pay or benefits, failure to promote or receive raises, relocation or undesirable assignments, undeserved or prohibited discipline, loss of responsibilities, hostility or isolation, and most other employer actions that have negative impact on the whistleblower.
Office of Special Counsel complaints
An important legal remedy for a federal employee whistleblower is to file a complaint with the U.S. Office of Special Counsel (OSC), an independent federal agency that investigates allegations of “prohibited personnel practices, especially reprisal for whistleblowing,” according to the agency’s website.
The OSC may be able to take corrective action against whistleblower retaliation, sometimes through an informal mediation process between the federal agency employer and the whistleblower. Corrective action may include restoration of the person’s job, back pay and benefits, or legal fees and related costs.
OSC may also pursue disciplinary action to punish agency officials responsible for the backlash against the whistleblower. OSC has the discretion to refer the most serious cases to the Merit Systems Protection Board (MSPB), which has an array of disciplinary options, including removal or suspension of the offending official.
Nuts and bolts
As of this writing on Sept. 26, 2022, the OSC is only accepting complaint filings electronically. The whistleblower employee should also consider submitting supporting documentation.
An employment attorney with specific experience in federal employment law can advise you about your whistleblower rights, including whether an OSC complaint looks advantageous in your situation. Then, the lawyer can assist in reviewing the retaliatory events, preparing and filing the complaint, negotiating or otherwise advocating for you before the OSC, as allowed.
While legal counsel is not necessary to file an OSC complaint, it can make a positive difference. For example, they can provide advice about other options a negotiated union grievance process, if applicable.
OSC reviews the complaint and accompanying documentation to decide if there is enough evidence to support the retaliation allegations and go forward. If not, the whistleblower usually can respond to the preliminary decision with more evidence or to argue against the preliminary determination.
If OSC decides there is enough evidence to investigate, the matter moves forward. Sometimes OSC will ask the agency for a stay or reverse the adverse personnel action (such as termination or relocation) to allow OSC to investigate first. If the agency refuses, OSC can ask the Merit Systems Protection Board (MSPB) to grant one.
OSC investigation
To investigate a complaint alleging retaliation against a whistleblower, the OSC can interview other employees (as well as the complainant) about the matter as well as require them to answer written questions. It may also obtain relevant documents from the employing agency.
All federal employees must cooperate in an OSC investigation and, if appropriate, may become personally subject to investigation and discipline if there is evidence that they committed a PPP or other violation of law.
If the OSC declines to impose corrective action on behalf of the complainant whistleblower, the whistleblower may decide to file an “individual right of action” or IRA appeal to the MSPB. An attorney can provide guidance at this stage or at any earlier phase before the OSC.