Whistleblower Protection
Federal employees have both the right and obligation to report wrongdoing observed in the workplace. Reporting these acts ensures accountability, protects the public interest, and preserves the integrity of our government.
The Whistleblower Protection Act of 1989 specifically protects federal employees who make protected disclosures from reprisal by government officials. If you are considering reporting wrongdoing or you are already a whistleblower and have been the subject of reprisal, contact me to explore your options. You can also learn more about whistleblower protection in the question-and-answer section below and by visiting the Tyler Employment Law blog.
Questions & Answers with Emily
What is a protected disclosure?
A protected disclosure occurs when a federal employee reports information that they reasonably believe shows evidence of one of the following:
Violation of law, rule, or regulation,
Gross mismanagement,
Gross waste of funds,
Abuse of authority,
Substantial and specific danger to public health or safety, and/or
Censorship related to research, analysis, or technical information.
This information can be reported to any recipient as long as the information reported is not restricted from release by executive order or statute. Common recipients of such disclosures include co-workers, managers, your agency's inspector general (IG), Congress, the Office of Special Counsel (OSC), or the media. If information you wish to report is restricted, it is important that you find the proper avenue (possibly your IG or OSC) to report the wrongdoing. It is also advisable to speak with an attorney before reporting to ensure your disclosure qualifies as a protected disclosure.
I’m more familiar with the IG. What is the Office of Special Counsel (OSC)?
The Office of Special Counsel (OSC) is an independent federal agency that protects most current federal employees, former federal employees, and applicants for federal employment from prohibited personnel practices (PPP), which include whistleblower reprisal.
Relevant for whistleblowers, OSC has a disclosure process (to report wrongdoing) and a complaint process (to report reprisal for whistleblowing).
For disclosures, OSC can serve as a secure channel for federal employees to report wrongdoing. OSC protects the identity of the whistleblower, ensures the alleged wrongdoing is investigated, and ensures wrongdoing is corrected.
For complaints, an employee can file a PPP complaint if they believe they have been subjected to reprisal for whistleblower activity. OSC will then review your complaint and make a preliminary determination. OSC may conduct further investigation into your complaint or close your complaint. If OSC investigates your complaint and finds reprisal occurred, they can seek corrective action (fix what happened to you), disciplinary action (seek discipline of the officials who committed the PPP), or both.
Do I have any further appeal rights if OSC does not agree that I have been the subject of whistleblower retaliation?
Yes. If OSC closes your complaint without corrective action, you can generally submit an appeal to the Merit Systems Protection Board (MSPB). This is called an Individual Right of Action (IRA) appeal. Employees must go to OSC first before they can file an IRA appeal with the MSPB.
However, keep in mind that some actions may be directly appealable to the MSPB so you would not be required to go to OSC first to contest the action. For example, if you were removed from federal service in reprisal for whistleblowing, you can appeal directly to the MSPB because the MSPB already has jurisdiction to review appeals of removals. Review the following section to learn more about the MSPB process: MSPB Appeals.
Does OSC only investigate and prosecute whistleblower retaliation?
No. OSC is charged with protecting federal employees from all PPPs. This section only discusses whistleblower protection, but employees may file a PPP complaint with OSC regarding any of the PPPs listed in 5 USC 2302(b). A summary of these 14 PPPs is below.
Discrimination based on race, color, religion, sex, national origin, age, disability, marital status, or political affiliation.
Soliciting or considering employment recommendations based on factors other than personal knowledge or records.
Coercing political activity.
Obstructing a person's ability to compete for employment.
Influencing a person to withdraw from competition to advance another applicant for employment.
Granting preference or advantage not authorized by law.
Nepotism.
Retaliation for whistleblowing.
Retaliation for filing a grievance, appeal, or complaint.
Taking personnel actions on the basis of conduct that does not adversely impact job performance.
Violating veterans' preference rules.
Violating merit systems principles.
Implementing a nondisclosure policy, form, or agreement without language that preserves the rights of employees to make protected disclosures.
Accessing medical records to further any of the PPPs described above.
You will notice that complaints on some of these topics may be raised in other forums. For example, claims of discrimination can also be raised through the Equal Employment Opportunity (EEO) process. If you contact me, I can help you understand the various ways in which you can file a complaint so that you can choose the forum that best fits your circumstances.
Does this mean that I cannot contact my agency’s IG on whistleblower matters?
Absolutely not! OSC and your agency's IG both play a significant (and concurrent) role in whistleblower protection. Like OSC, your agency's IG office can receive and investigate protected disclosures. Information gathered in those investigations can be used to inform management action. (Review the following section for information on your potential role in IG investigations: Investigations.)
However, OSC's role is unique because they are an independent agency (your IG is part of your agency) and they are specifically charged with protecting employees from prohibited personnel practices, including whistleblower reprisal. OSC can also seek corrective action when reprisal occurs and can even seek a temporary stay of a pending personnel action while an investigation is ongoing. While the IG may investigate allegations of wrongdoing, the IG does not have these unique authorities. Also, if you are subjected to whistleblower reprisal, keep in mind that you must go to OSC before you can file an IRA appeal with the MSPB. Contact with agency's IG alone will not be sufficient.
Contact me if you have questions about your reporting options. Consulting an attorney with experience in federal employment law can ensure you choose the best route to report your concern.