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When is a federal whistleblower not protected from retaliation?

On Behalf of | Oct 26, 2023 | Whistleblower Protection

In an ideal world, federal employees would never face retaliation for blowing the whistle on wrongdoing in their agency. Ideally, federal employers know that good-faith reports by people in a position to know are fundamental to good government.

The reality can be very different. Sometimes, federal employers have taken adverse actions against employees who blow the whistle, including firing them outright. Therefore, federal law now prohibits retaliation.

Unfortunately, there are limits and those limits can be somewhat confusing. Before you blow the whistle, you need to be sure you’re following all the rules so you get the protection offered by the law.

You need to develop a file of information that shows you’re acting on more than just a hunch. You need to choose the right person to disclose that information to. Depending on the nature of the wrongdoing, you may be required to disclose it to certain people and forbidden from disclosing it to certain others. There is strategy involved in getting the right information to someone who is in a position to take action.

You may wish to sit down with an attorney before taking action so you can maximize the protections afforded to you by law. An attorney who is experienced in federal whistleblower protection and the Merit Systems Protection Board (MSPB) may be able to give you crucial strategic advice that could help prevent retaliation. Getting your whistleblower complaint done correctly is well worth the investment.

What could leave a federal whistleblower unprotected?

There are sever potential issues that could cost whistleblowers protection from retaliation, according to the MSPB:

  1. They didn’t go through the proper channels. Whistleblowers must disclose their information to the right kind of party (who is not the alleged wrongdoer) in some way that is outside their normal duties. If they fail to meet the law’s requirements about where to file the complaint, they might not be protected from retaliation.
  2. They complained about something that wasn’t protected. Federal whistleblowers can expect protection when they report the specific forms of wrongdoing defined in the statute. These include the violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. If a whistleblower’s complaint does not involve one of these things, the whistleblower might not be protected.
  3. Their belief in the existence of the wrongdoing wasn’t reasonable. They acted on a hunch or simply did not have sufficient evidence to back it up. To be clear, whistleblowers who reasonably suspect wrongdoing are protected even if their suspicions turn out to be wrong. However, they might not be protected if their suspicion was not reasonable from the perspective of a neutral observer.

Federal whistleblowers play a crucial role in keeping our government honest and as efficient as possible. Don’t back down because the rules are complex.


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