What is the Whistleblower Protection Act?
Learn About the Protections Afforded to Federal Employees and Applicants Under the Whistleblower Protection Act
As a federal employee, reporting fraud, abuse, or corruption within the federal sector is one of the most important things you can do. Federal employees play an important role in maintaining the integrity of our government systems and institutions, and those who come forward are entitled to clear protections under federal law.
One of the most important laws for federal employees is the Whistleblower Protection Act. This law protects federal employees who qualify as “whistleblowers” as a result of properly disclosing information about crimes and other misconduct within the federal government. If you believe you may have information that qualifies you as a whistleblower, our attorneys can help you make informed decisions and take all legal action necessary to protect your statutory rights.
What Federal Employees Should Know About the Whistleblower Protection Act
Congress enacted the Whistleblower Protection Act in 1989 with the specific goal to, “[s]trengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government.” To achieve this goal, the Whistleblower Protection Act establishes federal employees’ right to make “protected disclosures” without fear of retaliation in their employment. The Act applies to federal job applicants as well.
For federal employees and applicants, the Whistleblower Protection Act has three key components. The first is the requirement for an employee or applicant to make a “protected disclosure” in order to qualify for whistleblower protection. The second is the Act’s prohibition of certain “personnel actions” taken against whistleblowers. Third, in order for a prohibited personnel action to constitute unlawful whistleblower retaliation, it must be clear that a federal employer took the action “because of” the employee or applicant’s decision to blow the whistle.
1. “Protected Disclosures” Under the Whistleblower Protection Act
Not all reports of mismanagement and misconduct qualify federal employees and applicants for whistleblower protection. To receive protection under the Whistleblower Protection Act, an employee or applicant must make a “protected disclosure.”
There are two aspects to a protected disclosure: (i) the subject matter of the disclosure; and, (ii) to whom the disclosure is made):
a. The Subject Matter of the Disclosure
A federal employee or applicant is eligible for protection under the Whistleblower Protection Act if the employee or applicant discloses information “which the employee or applicant reasonably believes evidences—
- “[A]ny violation of any law, rule, or regulation, or
- “[G]ross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or specific danger to public health or safety . . . .”
While both of these categories are extremely broad, they do not necessarily cover all forms of mismanagement or misconduct within the federal government. As a result, for any federal employee or applicant who is thinking about blowing the whistle, it is essential to consult with an experienced whistleblower lawyer who can confirm whether you qualify for protection under the Whistleblower Protection Act (or other applicable law). With that said, some examples of the types of information that, if properly disclosed, can entitle federal employees and applicants to protection include:
- Abuses of authority within the federal government or when interacting with contractors or constituents
- Acts that threaten national security or U.S. foreign policy objectives
- Approving or engaging in conduct that threatens public health or safety
- Discrimination and harassment
- Gross mismanagement or waste of government funds
- Nepotism and other forms of favor or bias
- Public corruption and bribery
- Theft, misappropriation, embezzlement, and misuse of government assets
- Use of federal assets for personal or political purposes
In limited circumstances, information within a federal employee or applicant’s possession may be protected from disclosure under federal law or Executive order. If the information you need to disclose is classified, secret, or otherwise protected from disclosure, our attorneys can advise you regarding how to handle your situation.
b. To Whom the Disclosure is Made
The Whistleblower Protection Act also restricts to whom federal employees and applicants can make protected disclosures in order to receive protection under the statute. Generally speaking, federal employees and applicants can make protected disclosures to:
- An Office of Special Counsel or Office of Inspector General
- Any “other component responsible for internal investigation or review”
- An agency head or other employee designated to receive protected disclosures under the Act
- A court in an appropriate judicial proceeding
An experienced federal whistleblower attorney at Oberheiden P.C. can assist by ensuring that you make your protected disclosure to an appropriate federal office or authority. Your attorney can also assist with preparing and submitting your disclosure, and then your attorney can deal with all relevant federal authorities on your behalf.
2. Prohibited “Personnel Actions” Under the Whistleblower Protection Act
When you qualify as a federal whistleblower under the Whistleblower Protection Act, you are entitled to protection from prohibited “personnel actions” as defined by federal law. Generally speaking, this means that your federal employer (or prospective federal employer) cannot take adverse action related to your employment (or prospective employment) based on your decision to blow the whistle. Examples of prohibited personnel actions include:
- Termination of federal employment
- Refusal to hire or promote
- Demotion or reduction in pay
- Unfavorable detail, transfer, or reassignment
- Unjustified disciplinary or corrective action
Again, these are just examples. If you experience any form of adverse employment action after blowing the whistle in compliance with the Whistleblower Protection Act, your federal employer may have violated your statutory rights, and you may be entitled to clear remedies under federal law.
3. Taking a Prohibited Personnel Action “Because Of” an Applicant or Employee’s Protected Disclosure
To constitute a violation of the Whistleblower Protection Act, a federal employer must undertake an adverse employment action “because of” an applicant or employee’s decision to blow the whistle. This simply means that the Act does not entitle you to protection from personnel actions that would have been undertaken regardless of your protected disclosure.
For example, let’s say you make a protected disclosure and the next day your federal employer announces a reduction in force (RIF). In this scenario, you would still be subject to the RIF—as long as the decision to include you is not based on your decision to blow the whistle. However, an apparent justification for an adverse employment action will still constitute unlawful retaliation under the Whistleblower Protection Act if it is nothing more than a pretext for a prohibited personnel action.
FAQs: Your Rights as a Federal Employee or Applicant Under the Whistleblower Protection Act
How do I know if I qualify as a federal whistleblower?
Most federal employees and job applicants qualify for protection under the Whistleblower Protection Act if they disclose legal or regulatory violations through the appropriate federal channels. Disclosure of “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or specific danger to public health or safety,” can trigger whistleblower protections as well. However, as conditions apply, it is best to speak with an experienced lawyer who can carefully assess your eligibility for whistleblower protection.
How do I submit a “protected disclosure” under the federal Whistleblower Protection Act?
There are several different means for submitting a protected disclosure under the Whistleblower Protection Act. However, not all means are available in all circumstances. An experienced lawyer can help you here as well; and, once your lawyer determines where you need to submit your protected disclosure, your lawyer can prepare and submit your disclosure on your behalf.
Can I keep my identity confidential under the federal Whistleblower Protection Act?
It is possible to keep your identity confidential under the federal Whistleblower Protection Act. However, the means of disclosure you choose could impact your ability to maintain confidentiality. At Oberheiden P.C., our lawyers can work with you and the government to protect your identity to the fullest extent possible under the law.
Should I hire a lawyer if I am thinking about filing a whistleblower complaint with the OSC or OIG?
Yes, if you are thinking about filing a whistleblower complaint with the OSC or OIG, you should consult with a lawyer promptly. There are steps you need to take to ensure that you remain eligible for protection, and an experienced federal whistleblower protection lawyer will be able to guide you step by step through the process of making your protected disclosure.
What if I file a report and I don’t qualify for whistleblower protection as a federal employee?
Federal employees who take the necessary steps to submit a protected disclosure will qualify for protection in most cases. The federal whistleblower protections are broad, and they are designed to encourage federal employees (and job applicants) to come forward. Our lawyers can help make sure you receive the protection to which you are legally entitled; and, if you have already filed a report and are concerned that you might not be entitled to protection, we can help you in this scenario as well.
Speak with a Federal Whistleblower Protection Attorney in Confidence
If you would like more information about your legal rights under the federal Whistleblower Protection Act, we invite you to get in touch. Please call 88-680-1745 or contact us online to speak with a federal whistleblower protection attorney at Oberheiden P.C. in confidence.