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This MSPB ruling is good for federal contractors

On Behalf of | Dec 14, 2022 | Whistleblower Protection

Many people know that the federal government is the nation’s largest employer. However, the number of federal employees pales in comparison to another group – federal contractors.

In 2020, the Brookings Institute explored the true size of the federal government. It showed that agencies employed just over 2 million full-time employees. Federal contractors numbered nearly 5 million. So, when contractors outnumber full-time employees more than two to one, you might wonder: What protections do they enjoy?

MSPB supports whistleblower protections for contractors

The Merit Systems Protection Board (MSPB) recently ruled on a case that clarified contractors can benefit from whistleblower protections. Importantly, these protections exist even if the whistleblowers aren’t employees or applicants at the time they report wrongdoing.

The case was Abernathy vs. Department of the Army. Abernathy had worked as a contractor with the Army, and he reported that officials were misappropriating funds. This was in August 2012. Later, he applied for another position and was turned down. The hiring manager was one of the people Abernathy had accused of misappropriating funds. Abernathy argued that the agency’s decision against him reflected retaliation.

The Army argued that the Board didn’t have jurisdiction over the complaint. The agency said that Abernathy’s complaint about misappropriation wasn’t protected because, at the time:

  • He wasn’t an employee
  • He wasn’t an applicant

The administrative judge who first reviewed the case ruled in favor of the Army. However, after Abernathy appealed, the MSPB took another look. It found that the crucial fact was not whether Abernathy was an employee or applicant at the time he blew the whistle. It was whether the disclosure met the standards set by 5 U.S.C. § 2302(b)(8):

  • any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
  • any violation of any law, rule, or regulation, or
  • gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

Here, the MSPB ruled that the important facts were that Abernathy reasonably believed he was reporting a violation of the law or gross mismanagement of funds. Those facts meant Abernathy’s whistleblower disclosure deserved protection. Thus, when he became an applicant, the law protected him against any actions taken as retaliation for his disclosure.

Based on this information, the MSPB overturned the administrative judge’s decision. It sent the matter back for further review.

Whistleblowers still need to do things right

While the MSPB’s decision lends some strength to whistleblower protections, it also reinforces the need to do things correctly. The MSPB spent several paragraphs noting that Abernathy earned protection only because he followed the correct series of steps with his complaint.

As a result, it’s important for would-be whistleblowers to think multiple steps ahead. As Abernathy’s case illustrates, even if you’re not an employee or applicant at the time you make your report, you may be at some point in the future. After all, the nation employs more than 2 million federal employees and roughly 5 million contractors. If you think you might join them someday, you’ll want to protect your chances.


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