What law protects Federal Employee Whistleblowers?

The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may:

(1) state a claim with the Office of Special Counsel (OSC);

(2) pursue an individual right of action before the Merit Systems Protection Board (MSPB);

(3) appeal to the MSPB regarding an agency's adverse action against the employee; or

(4) initiate a grievance proceeding pursuant to negotiated grievance procedures.

If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place.

If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.

What activities are protected under the WPA?

An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:

• Cooperating with or disclosing information to an Inspector General or Special Counsel;
• Refusing to obey an order that would violate law;
• Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
• Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.

To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule, or regulation.

What must a plaintiff prove to prevail under the WPA?

Under the WPA, an employee must show by a preponderance of the evidence that:

(1) the employee made a protected whistleblowing disclosure; and

(2) a protected disclosure was a contributing factor in the agency's adverse action.

If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected whistleblowing disclosure.

What retaliatory acts are prohibited under the WPA?

The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.

What can a prevailing plaintiff recover under the WPA?

Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.