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What should whistleblowers know before they act?

On Behalf of | Jan 25, 2022 | Whistleblower Protection

The government relies on whistleblowers to protect us from public health concerns, tax theft and abuses of power. For this reason, there are dozens of laws protecting whistleblowers from retaliation. However, many whistleblowers still find themselves unprotected after they call out government misconduct. Why is that?

This is a question we can begin to answer by looking at a recent whistleblower case. As reported by FedSmith, the case involved a federal employee who tried to help the victims of sexual harassment and assault.

What happened to the whistleblower?

The woman in question was stationed with the United States Army Special Operations Command (USASOC). She found what she believed was evidence of retaliation against the victims of sexual harassment and abuse. She then emailed this information to a U.S. Senator. The problem was that her email contained classified information, but she sent it from an unclassified network.

The USASOC responded to this “spillage” by seizing her computer and scrubbing it. About a month later, the employee sent a copy of her previous email to the Equal Employment Opportunity Commission (EEOC). Her email once again contained classified information and traveled over an unclassified network. This second spillage resulted in the loss of her security clearance, and the USASOC suspended her indefinitely.

The employee took her case to the Merit Systems Protection Board (MSPB), but the Board said it didn’t have jurisdiction to hear her case. Instead, it said the case fell under the precedent set by the 1988 case of Department of Navy vs. Egan. That case held that the MSPB did not have the authority to review the substance of cases in which the underlying issues involved classified materials. When the employee appealed the Board’s decision to the Federal Circuit Court of Appeals, it upheld the Board’s decision.

As a result, the employee lost her position, and her removal received the green light from the Court of Appeals.

How can would-be whistleblowers avoid a similar fate?

The MSPB and Circuit Court may have sympathized with the employee’s efforts. Indeed, the Circuit Court stated her “situation may be sympathetic.” The problem was that she went about things the wrong way. There are numerous laws that protect whistleblowers from retaliation, but they also tend to outline the steps employees must follow to receive those protections.

As the MSPB noted in a 2010 report, there are generally five steps employees must follow to gain the protection they deserve from retaliation:

  • Address a qualified type of wrongdoing
  • Disclose the problem to one of the right types of parties, which may be limited by the terms of the law
  • Make a report outside of normal duties or the normal channels of communication
  • Report to someone other than the wrongdoer
  • Make a report grounded in a reasonable belief, meaning others could reasonably come to the same conclusion

Once they follow these steps, they secure their protections. Then, if they suffer retaliation, the MSPB says they should take three additional steps:

  • Suffer some form of retaliation
  • Demonstrate a connection between the retaliation and the whistleblowing
  • Take the case through the proper channels

In short, whistleblowers want to make sure they understand how the system works before they leap into action. They want to know which law or laws may govern their concerns, and they want to know what steps those laws say they need to take to secure their protections. This means it’s often best for whistleblowers to seek out legal counsel before they act. That way, they can avoid stepping outside the lines, and they may even receive help to strengthen their reports.

It’s worth doing things right

The sad fact is that, despite the laws, whistleblowers often face retaliation. In fact, some might say it’s the norm, rather than the exception.

This isn’t to say that whistleblowers should avoid blowing the whistle. Their actions save taxpayers billions of dollars, safeguard public health and prevent the government from standardizing abuses of power. Instead, the fact that retaliation is so common means that would-be whistleblowers want to think before they act. They want to make sure they look before they leap. They want to know they’ll have solid footing when they land.


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