What’s the Whistleblower Protection Act?
The U.S. Whistleblower Protection Act (WPA) (as amended from the Civil Service Reform Act of 1978 and amended again by the Whistleblower Protection Enhancement Act in 2012) is a critical piece of legislation that applies to federal employees in the executive branch. The Act protects workers from retaliation for reporting significant wrongdoing occurring within government agencies or engaging in protected actions, such as testifying before Congress.
Though the Act was passed in 1989, whistleblowing protections for U.S. federal government workers goes back to the late 1770s. The term “whistleblower” itself came into vogue two centuries later. From Wikileaks to the National Security Agency to Deep Throat to Watergate to the Pentagon Papers, whistleblowers over the years have worked hard to alert the public when they know something inappropriate is happening.
Most executive branch federal employees, former employees, and job applicants are safeguarded under this Act. However, there are exceptions. For example, political appointees, uniformed military personnel, intelligence community members, and U.S. Postal Service employees are exempt.
Under the Whistleblower Protection Act, protected disclosures include reports of gross mismanagement, significant misuse of funds, violation of law, abuse of authority, or threats to public health and safety. The Whistleblower Protection Act also covers instances of censorship or problematic agency policy decisions that directly relate to these categories of misconduct.
Who’s eligible to make a protected disclosure under the Whistleblower Protection Act?
Federal executive branch employees, former employees, and individuals applying for federal employment can all make protected disclosures. Additionally, employees from the Government Publishing Office are also covered.
Generally, disclosures can be made to anyone at work unless the information is specifically restricted by law or executive order. Even then, disclosures remain protected if shared with Congress, the Office of Special Counsel (OSC), inspectors general, or authorized individuals within the employee’s agency.
Common recipients of protected disclosures are:
- Congress
- Office of Special Counsel (OSC)
- Offices of Inspectors General
- Supervisors or colleagues
- Nongovernmental organizations
- The media
What’s the process for enforcing the Whistleblower Protection Act?
Enforcing the WPA involves several key agencies and specific procedures. The Office of Special Counsel (OSC), an independent agency, initially investigates complaints of retaliation and can prosecute violations. The OSC can recommend corrective actions against those who retaliate and can escalate enforcement to the Merit Systems Protection Board (MSPB), a quasi-judicial body.
If OSC doesn’t resolve a complaint within 120 days, whistleblowers can escalate the issue directly to the MSPB. Serious personnel actions like termination or demotion can be directly appealed to the MSPB. In the meantime, any less severe issues must initially be handled by the OSC. If dissatisfied with the MSPB’s decision, whistleblowers can further appeal to a federal appeals court (although they do not have the right to a jury trial).
Additionally, union-represented employees also have the option to use collective bargaining agreements to address retaliation through arbitration. However, they must choose between union arbitration and the OSC/MSPB route.
What kinds of protections and remedies are available under the Whistleblower Protection Act?
The Whistleblower Protection Act expressly forbids retaliation through personnel actions. This includes firing, demoting, suspension, or threats against employees who reveal wrongdoing. Agencies cannot impose gag orders. They cannot create policies that limit whistleblowers’ protected speech without explicitly affirming whistleblower rights.
If retaliation occurs, whistleblowers can seek remedies via the MSPB. However, whistleblowers must first prove that their disclosure significantly contributed to the retaliatory action. Then the agency must provide clear and convincing evidence that it had a legitimate, independent reason for the personnel action.
Possible remedies under the Whistleblower Protection Act include:
- Reinstatement or transfer, including back pay and benefits
- Reasonable consequential damages (like medical and travel costs)
- Compensatory damages for emotional distress, pain, suffering, or reputational harm
- Attorney fees and associated legal costs
Are Contractors and Grant Workers Protected under Whistleblower Protection Act?
Yes. Employees working for federal contractors, subcontractors, grantees, and subgrantees also have whistleblower protections. If you report issues like severe mismanagement, misuse of funds, abuses of power, or risks to public safety connected to federal contracts or grants, you’re shielded from retaliation. These disclosures can be safely made to officials such as Congress members, Inspectors General, the Government Accountability Office (GAO), or relevant federal oversight officials alike.
Who’s Not Protected from Whistleblowing?
Some executive branch employees are not included in the various protections the Whistleblower Protection Act provides. Such positions include U.S. Postal Service workers, uniformed military service members, federal inspector generals, and FBI employees.
Can Non-disclosure Agreements (NDAs) Stop You from Speaking Up?
No. Under the Whistleblower Protection Enhancement Act of 2012, federal agencies can’t enforce non-disclosure agreements or policies that limit your right to report misconduct. These agreements must clearly state that your whistleblower rights remain protected. This ensures you’re always free to speak up about serious issues like fraud, waste, or abuses of authority.
What’s a Merit Systems Protection Board (MSPB)?
The MSPB is an independent federal agency that handles whistleblower retaliation claims under the Whistleblower Protection Act. It relies on administrative judges and a three-member board to decide appeals.
Who can appeal to the MSPB? Those employees who face termination, a suspension longer than 14 days, or a reduction in grade or pay may appeal directly to MSPB. For less severe actions, they must first pursue remedies through OSC before turning to MSPB.
Who’s eligible? Those whistleblowers eligible for a direct MSPB appeal may still choose to file with OSC first. Then, if they happen to lose at the administrative judge level, they can appeal to a federal appeals court. They are not entitled to a jury trial.
How Does Someone Win a Whistleblower Case? What’s a Burden of Proof and Why is It Necessary?
To win a whistleblower case, certain checkmarks must first be met. To begin with, you must show that your protected report played a part in the action taken or threatened against you. You can do that by proving it is more likely than not that you made a protected disclosure – or your managers believed you did. You must then show that the officials responsible for the decision knew or should have known about your report.
Additionally, you need to prove they acted against you, threatened to do so, or failed to act after your disclosure. If this burden is met successfully, then it’s up to the agency to take next steps.
What Kinds of Questions Might Whistleblowers Be Asking?
Common questions whistleblowers may wonder before they make a report include the following:
• Is my concern worth reporting?
• Can I submit without anyone knowing who I am?
• Can I report in my native language? If so, who should I get in touch with to do so?
• Can I make a report in association with a third party who can speak about a violation they’re experiencing, even if this third party doesn’t want to be the one to initiate the report?
• Will I receive any kind of cash reward, monetary compensation or other reward for being a whistleblower?
• I’m concerned about retaliation from my employer and want to know: Do I have any protections as a whistleblower?
• What’s the whistleblowing process? Do I have to reach out to an internal body? Can I report it to the authorities somehow?
• If I know something is happening that I should report, what do I do next?
• How do I use the reporting system?
• How does the reporting system work?
What Exactly Does a Whistleblower Ombudsman Do and How Can They Prove Helpful as a Resource?
The Whistleblower Ombudsman is an agency official responsible for helping employees understand their whistleblower rights. While they can’t represent you in legal matters, they provide critical guidance about your protections and options if you’re thinking of reporting misconduct or if you’re already experiencing retaliation. They play the role of trustworthy expert – someone to help get answers, bounce questions off of before taking action, and get advice from.
What Challenges Do Whistleblowers Face Around the World?
Globally, whistleblowers have historically faced significant retaliation and lacked proper legal protections. The EU Whistleblowing Directive aimed to address these issues by requiring member states to strengthen protections for whistleblowers reporting misconduct like tax fraud and environmental damage.
Despite progress, countries like Hungary and Italy among many others have encountered difficulties. For example, Hungary’s dual reporting systems ended up causing confusion and Italy ended up weakening whistleblower protections compared to past laws. These challenges require ongoing attention in order to achieve progress.
What Makes a Whistleblower System Effective?
In an effort to uphold ethical standards and ensure compliance, many companies offer their employees and third-party partners access to a whistleblower system. To succeed, a whistleblower system needs to be secure, accessible, and widely understood. Employees should be able to report concerns anonymously. And feel confident that their identity will be protected.
Key factors include centralized case management, GDPR-compliant data practices, timely follow-up on reports, and thorough training for those handling them. A clear process is key. This builds trust, reduces fear of retaliation, and ensures that serious issues are addressed long before they spiral into something serious.
How Can Companies Build a Speak-Up Culture That Lasts?
Just because a whistleblower solution is in place doesn’t mean people feel safe to report concerns. It takes leadership, training, and trust to create a speak-up culture and successful whistleblower strategy. Recognizing and celebrating the positive impact of whistleblower reports can build momentum. Regular training reinforces how to use the system and why it matters.
