Whistleblower Protection Act

Whistleblower Protection Act

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Whistleblower Protection Act

 

WHISTLEBLOWER PROTECTION ACT TEXT

What is the Whistleblower Protection Act?

The Whistleblower Protection Act of 1989 was promulgated in order to provide protection to federal employees who engage in "whistleblowing." The Whistleblower Protection Act makes it illegal for a federal agency or employee to take retaliatory measures against an employee who discloses gross violations in government.  The Act was amended in 1994. 

The statutory language of the whistleblower protections requires the disclosure to (a) evidence (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (b) not be prohibited by law or Executive Order, except when the disclosure is made to the

Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures.

What employees are protected by the Whistleblower Protection Act?

Technically all citizens have the authority to be a whistleblower against the federal government.  However, the Special Counsel may order investigation and require a report from the head of the agency only if the whistleblower is a "covered employee." It is not deemed a retaliatory measure by a federal agency if the individual is not considered a "covered employee."

A "covered employee" is includes all current and former employees; as well as applicants for positions in the executive branch of government.  There are exceptions to the coverage.  Those federal employees whose service is deemed to include "confidential, policy-determining, policy-making, or policy-advocating character" are not privy to the protections of the Whistleblower Protection Act.  In addition, those federal employees whose positions are deemed to be exempt by the President of the United States due to "conditions of good administration" will not receive protection.  

There are also specific government agencies that do not fall within the protections of the Whistleblower Protection Act.  These include:  Postal Service or the Postal Rate Commission, the General Accounting Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and any other executive entity that the President determines primarily conducts foreign intelligence or counter-intelligence activities.

These exceptions are put in place in situations where national security or the inner-workings of government are deemed to outweigh the value of a successful whistleblowing campaign.

In addition, the leaking of any agency violations covered by the whistleblower act are not protected if the "covered employee" goes to the media to report on the matter.  The policy behind the Whistleblower Protection Act is to address agency misconduct but at the same time the information is to stay within the government.  The Whistleblower Protection Act was enacted, in part, to limit disclosure to outside entities; especially the media.

What actions by government agencies are considered retaliatory?

The Whistleblower Protection Act protects employees from retaliation in the form of an agency taking, or failing to take a "personnel action." The statute defines "personnel action" to be any one of 11 actions taken by a federal agency.  These include: an appointment; promotion; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation; a decision concerning pay, benefits or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities or working conditions.  

Originally the Whistleblower Protection Act only covered 10 of these personnel retaliations but due to a number of loopholes in the Act it was amended and under the 1994 amendment to the Act the retaliatory measure of "psychiatric testing or examination" was included.

To constitute a retaliatory measure by a federal agency the whistleblower must show that the measure taken was inconsistent with the skill and/or pay grade of the whistleblower.  The curtailment of responsibility, pay, or other downgrades in employment must be significant to warrant an action. 

The Whistleblower Protection Act also protects "covered employees" of the federal government from retaliatory measures associated with ancillary activities associated with whistleblowing including: testifying for others or lawfully assisting others exercise any appeal, complaint, or grievance right, cooperating with or disclosing information to an Inspector General or Special Counsel; or for refusing to obey an order that would violate the law.

How to file a make a complaint under the Whistleblower Protection Act?

An employee reporting an alleged prohibited activity to the does not need the representation of an attorney and there is no statute of limitations for filing a complaint.  Upon request, the OSC will provide complaint forms to employees. The Complaints Examining Unit (CEU) in the OSC headquarters office receives, reviews, and evaluates all complaints. All complaints, disclosures, and requests should be sent to the following address:

Office of Special Counsel

Complaints Examining Unit

1730 M Street, N.W.

Suite 300

Washington, D.C. 20036-4505

Where is a claim for Whistleblowing retaliation brought?

Whistleblower protections may be raised within four forums or proceedings: The employee appeals to the Merit Systems Protection Board of an agency’s adverse action against an employee, known as “Chapter 77” appeals; actions instituted by the Office of Special Counsel; individually maintained rights of action before the Merit Systems Protection Board; and grievances brought by the employee under negotiated grievance procedures.

MERIT SYSTEM PROTECTION BOARD

A Chapter 77 appeal goes before the Merit Systems Protection board (MSPB).  The MSPB hears all actions that where the employee raises the defense of retaliation for whistleblowing including adverse actions against the employee for reasons that will promote the efficiency of the agency; and performance-based adverse actions against employees for "unacceptable performance." A "covered employee" will prevail in this type of action if he/she can show that the employment action was prohibitive and did not substantially relate to the abilities and work product of the employee.   Upon a finding that there has been a form of retaliation the MSPB will provide the "covered employee" with interim relief pending any petitions or appeals.

The Office of Special Counsel receives allegations of prohibited personnel practices and to

investigate those allegations, as well as to conduct an investigation of possible

prohibited personnel practices on its own, absent any allegation: requiring agency investigations and agency reports concerning actions the agency is planning to take to rectify those matters referred; seeking an order for “corrective action” by the agency before the MSPB; seeking “disciplinary action” against officers and employees who have committed prohibited personnel

practices; intervening in any proceedings before the MSPB, except that in cases where an individual has brought an individual right of action (IRA) under a chapter 77 appeal covered by the MPSB.

OFFICE OF SPECIAL COUNSEL

Soon receipt of a complaint by the Office of Special Counsel the Office has 240 days to determine whether there are "reasonable grounds" to believe that the allegations have occurred.  If the Office determines that the allegations are credible then they will be submitted to the appropriate agency head and require that the agency provide a written report.  The identity of the complainant will be confidential at all times unless disclosure is necessary to avoid "imminent danger to the health and safety or an imminent criminal violation.  The Office of Special Counsel only need find that the whistleblowing was a "contributing factor" in order for the complaint to be submitted to the MSPB

INDIVIDUAL RIGHT OF ACTION

Under the Whistleblower Protection Act a "covered employee" has the right to appeal a decision by the MPSB within 60 days after the Office of Special Counsel closes the investigation or within 120 days of the filing of a grievance with the Office of Special Counsel.

2007 Amendments to the Whistleblower Protection Act

Although it has not passed amendments to the Whistleblower Protection Act have been brought through Congress on a number of occasions; most recently 2007 and 2009.  These amendments would extend whistleblower protection and expand the term "covered employee" to include employees concerned with national security issues, specifically the FBI, CIA, NSA, and Defense Intelligence Agency.  It would also include the employees of government contractors and would extend to science based agencies.

What remedies is a Whistleblower entitled to?

Whistleblowers are entitled to a number of remedies, including back pay, reinstatement of medical benefits and compensatory damages. The Whistleblower Protection Act permits the Office of Special Counsel to commence disciplinary actions against federal officials who have retaliated against whistleblowers. 

What to Know About the Whistleblower Protection Act

In the United States, legal protections and whistleblower protection acts differ according to the subject matter or issue of the circumstances or the case of the whistleblowing. The particular state in which the misconduct took place may also bring up certain legal protections. When the Sarbanes-Oxley Act was passed in 2002, the Judiciary Committee in the Senate found that the whistleblower protections in place were heavily dependent on the vagaries and patchwork and of differing state statutes. Nonetheless, a wide range of state and federal laws shield employees who call attention to abuses, assist in enforcement proceedings, or decline to obey directions that are unlawful.

The first whistleblower protection act in the United States that was placed into law specifically to defend whistleblowers was the 1912 Lloyd-La Follette Act. This whistleblower protection act guaranteed the federal employees the right to provide information to the U.S. Congress without any fear of losing their employment from the federal agencies. The first United States environmental whistleblower protection act to contain an employee protection law was the 1972 Water Pollution Control Act, also called the Clean Water Act. Since this regulation passed, many other specific laws in different industries have been created to protect whistleblowers.

Employees or individuals who report a dishonest claim as a whistleblower against the federal government, which then suffers adverse employment movements as a consequence, can have up to six years to file a civil suit against the individual for remedies under the United States False Claims Act. Under one of the provisions, the report’s original source may be eligible to a receive fraction of the recovery that the federal government obtains from the wrongdoers. However, this original source must be the first individual to file the federal civil complaint for the recovery of any federal funds fraudulently achieved, and must avoid publicizing the civil claim of fraud until after the United States Department of Justice decides whether the claim is worth prosecuting. Such civil lawsuits must be filed under the seal, using specific procedures to keep the civil claim from becoming known to the public until after the federal government makes any decision on whether to directly prosecute.

More about the Whistleblower Protection Act

The one of the largest federal legislation regarding protection or whistleblowers is the 1989 Whistleblower Protection Act. This United States federal act aims to protect any federal whistleblowers that are employed under the government and report any agency misconduct they observe. A federal agency can violate the Whistleblower Protection Act of 1989 if any agency authorities take or threaten to take retaliatory personnel action against an applicant or employee because of the disclosure of information by the respective applicant or employee. A whistleblower can file a complaint if he or she believes exists if there is evidences of a violation of a rule, regulation, or law,  of if there is gross mismanagement, abuse of authority, excessive waste of funds, or a specific and significant danger to public safety or health

Typically, whistleblower protections can be raised under the Whistleblower Protection act through four proceedings or forums. First, an employee can appeal to the Merit Systems Protection Board the given agency’s opposing action against an employee, which is a called a Chapter 77 appeal. Second, the protections can be raised through actions installed by the Office of Special Counsel. The third is before the Merit System Protection Board through the individually maintained right of action. The last way is through grievances brought forward by the employee under the negotiated terms of grievance policies. 

Federal employees can greatly benefit from the Whistleblower Protection Act as well as the No Fear Act. These two acts made individual agencies responsible directly for the sanctions of unlawful retaliation. Certain federal protections are enhanced in the few cases and result in the Office of Special Counsel investigating the whistleblower's civil case.

Whistleblower Protection Enhancement Act

The Whistleblower Protection Enhancement Act is an act that was set into law as a way to enhance the previous federal regulations. These whistleblower protection acts were introduced by Senator Daniel Akaka (D-Hawaii) in 2009 in order to amend the federal personnel law regarding to whistleblower protections to existed to state that the protections would apply to an admission of any abuse of law, excluding those for an alleged violation of law that is a slight, unintentional violation that happens during the careful carrying out of authorized or official duties. Senator Daniel Akaka has also introduced similar bills during the 107th, 108th, 109th, and most recently the 110th Congresses, but unfortunately all of these efforts to pass the bill have failed. Though a tougher form of the bill had been presented and passed twice the House of Representatives as H.R. 985 and H.R. 1507 in the 110th and 111th Congress respectively, the Senate has repeatedly refused to accept the stronger version of the bill from the House. During the presidential campaigns of 2008, several candidates such as then-Senator Barack Obama, promised to back up the stronger version of the bill of the House if elected president.

Senator Daniel Akaka proposed a very controversial amendment to S. 372 in July 2009 that further damaged the bill by including many provisions that were asserted upon by the Obama administration and the commanding federal agency managers lobby. Despite the campaign promises by President Obama to support the stronger version House bill, after the election he disappointed many when the administration energetically supported the lesser bill from the Senate. Furthermore, the Obama administration officials assisted in creating many of the controversial sections found in the mark-up version of the Senate bill in 2009.

The sponsors of Senate bill put off presenting the bill for the full Senate approval until after the lame-duck session during the 111th Congress. The version of the Whistleblower Protection Enhancement Act from the Senate only had mild reforms of the whistleblower rights and even contained some provisions that made it much more difficult for employees of federal agencies to report or bring up whistleblower claims. 

The bill form the Senate varied substantially from that of the House and the delay tactics used by the Senate sponsors of the bill confirmed that the House of Representatives would only be given a take-it-or-leave-it choice for the weak Senate bill. After the House finally deliberated on the weaker Senate bill, the sponsors of the bill required a two-thirds vote in order to pass the bill on the suspension calendar of the House.

In order to avoid any objections raised by Replications regarding the intelligence agency protections and to account for the votes lacking that were needed to pass the bill, the Sponsors of the Senate bill in the house took about all the protections that were created for the FBI and intelligence agency employees. This Whistleblower Protection Enhancement Act was finally killed on December 22, 2010 by the Senate, after a Senator put an anonymous hold on the bill. 

Both the Government Accountability Project and On the Media have attempted to organize a grassroots effort that utilizes the Internet to try to figure out which specific senator placed the anonymous hold on the Whistleblower Protection Enhancement Act Bill. As of March 14, 2011, only three specific senators have not denied placing the anonymous hold on the bill: Jeff Sessions (R-AL), Jim Risch (R-ID), and Jon Kyl (R-AZ).

The bill has been reintroduced again in the Senate and includes the protections for the FBI and intelligence agency employees. This introduction of the bill was made on April 6, 2011.

A statement has been issued by the National Whistleblowers Center regarding the Re-Introduction of Whistleblower Protection Act. The statement expressing the organization’s concerns that the Senate's new Whistleblower Protection Enhancement act bill claims that the Merit Systems Protection Board has the sweeping new authority to discharge whistleblower cases without having to hold hearing, essentially acting as the gatekeeper for the whistleblower’s court access.

Authorized Federal Agencies that Enforce the Whistleblower Protection Act

There are three main authorized federal agencies that work to enforce the Whistleblower Protection Act. The first is the Office of Special Counsel. This organization investigates any federal whistle-blower complaints. This organization has not had a leader since October 2008.  This is due to the then-special counsel member Scott Bloch resigning during an FBI investigation. The investigation itself was looking at whether Bloch obstructed justice by deleting multiple computer files illegally after many complaints that Bloch himself had reacted against federal employees who disagreed with the policies put in place by Bloch. Barack Obama, who was Senator at the time, created a campaign promise at the time to employ a special counsel member that was extremely to whistle-blower rights. This did not happen until April 2011, where the Obama administration appointed Carolyn Lerner who was then confirmed by the Senate.

The second organization is the Merit Systems Protection Board. This organization is a quasi-judicial agency that arbitrates whistle-blower complaints by using appointed administrative legal judges who often work on behalf of the government. Ever since 2000, the Merit Systems Protection Board has ruled on the side of whistle-blowers only three times out of 56 cases based on the merits, according to an analysis by GAP. President Obama appointed a different vice chairperson and chairperson with more backgrounds as advocates for federal worker, but it shall still most likely take many years for the organization to turn things around.

The third organization is the Federal Circuit Court of Appeals, which is the only court with the authority to hear the appeals regarding whistle-blower cases based on the merit board. The Court of Appeals has been heavily criticized by members of Congress such as Senator Grassley (R-Iowa) for constantly misinterpreting laws regarding whistle-blowers and setting a new precedent that is more hostile to claimants. Ever since Congress last looked at the Whistle-blower Protection Act during the 1994 Congress, the Court of Appeals has ruled on behalf of the whistle-blowers in only 3 cases out of 23 that were decided based on the merits of the case, according to a GAP analysis.

Other Whistleblower Protection Acts

Other whistleblower protection acts in the United States include the Military Whistleblower Protection Act, an act that protects the legal rights of members of the armed services to discuss issues with Congress or other state and federal agencies.

Outside of the United States, there are various legal protections for whistleblowing that vary from country to country.  For example, in the United Kingdom, the 1998 Public Interest Disclosure Act gives guidelines for legal protection for employees or individuals who disclose certain information that exposes unlawful acts including malpractice or similar issues. In the legal vernacular, the act protects whistleblowers from being victimized or dismissed.

 

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