Scope of a federal whistleblower’s damages from retaliation

Whistleblower retaliation in the federal workplace can be blasting or subtle.

In honor of National Whistleblower Appreciation Day on July 30, we look at the kinds of retaliation a federal-employee whistleblower may face. July 30, 1778, was the date the Continental Congress passed the first piece of U.S. legislation protecting whistleblowers, according to the initial Senate resolution recognizing the day in 2013.

Whistleblowers in the federal workplace

Federal employees who blow the whistle, meaning report internally or reveal publicly illegal or unethical actions occurring in their workplaces, within the course of their employment or otherwise in their departments or agencies, normally have legal protections from retaliation in federal law, the Whistleblower Protection Act (WPA). Whistleblowers must take care to comply with laws preventing them from disclosing certain kinds of information or requiring them to make particular kinds of reports or complaints to designated federal entities or persons.

An attorney who focuses on federal employment law and advocates for the rights of federal workers can provide advice and counsel to a whistleblower before they release information or later when they face retaliation for doing so.

And an important aspect of legal representation in this context is to thoroughly investigate the retaliatory events to determine how they have harmed the employee and whether the worker has potential legal remedies for the illegal treatment. For example, depending on the circumstances, the lawyer might represent a whistleblower against wrongful termination or in disciplinary matters, in administrative hearings or on appeal. Issues may also arise of discrimination or harassment of the whistleblower-employee.

Retaliation in employment practices

Retaliation can involve negative or undeserved employment actions that could include, but are not limited to:

• Wrongful termination
• Untrue negative character or professional references
• Demotion
• Withholding of training opportunities
• Withholding of perks
• Failure to promote
• Undesirable relocation or reassignment
• Substandard wages or benefits
• Unfair employment reviews
• Lack of or lower raises
• Undeserved investigation, reprimand or discipline
• Discrimination or harassment
• Less desirable workplace accommodations, materials or equipment
• Constructive discharge
• And other similar adverse actions

But some types of retaliation may not be as easy to identify as traditional employment actions.

Subtle reprisals

At times the retaliation may be more devious and harder to identify. Interpersonal communication with a supervisor may suddenly deteriorate. The manager might give the employee the silent treatment, treat them rudely, make untrue accusations or speak poorly of them to others. Or management may ignore and fail to intervene when other employees treat the whistleblower badly because of the whistleblowing, such as through bullying, cyberbullying, microaggressions, gaslighting or isolation.

The combined impact of such reprisals may be a retaliatory hostile workplace environment.

Takeaways

Another way legal counsel can assist a federal-employee whistleblower is in establishing a link between the whistleblowing and the retaliatory treatment. The supervisor, manager or other person in authority must have known of the whistleblowing and have proof of retaliatory intention. The timing can even be relevant when the retaliation began only after management learned about the whistleblowing.