Federal Employee Whistleblowers

If your job involves the federal government, either as a contractor or as a federal employee, you are likely protected by a series of whistleblower laws. This is especially relevant if you work in Washington, D.C. or in the surrounding areas, including Arlington, Fairfax, Alexandria, Reston, and Loudoun County, as so much of the federal infrastructure is based here in Virginia.

The 1978 Civil Service Reform Act, 5. U.S.C. § 2302, grants whistleblower protection to many types of federal government employees and applicants for employment. In particular, the law prohibits employers from retaliating against employees or applicants who (1) complained that a rule, law, or regulation has been violated; (2) complained of gross mismanagement, gross waste of funds, abuse of authority, or a “substantial and specific danger to public health or safety;” or (3) reported to the Special Counsel or Inspector General of such a legal violation, gross mismanagement, gross waste of funds, abuse of authority or substantial dangers to health or safety.

The 2012 Whistle Blower Protection Enhancement Act, Pub. L. No. 1120-199 (“WPEA”) adds to the protections available under the Civil Service Reform Act in that disclosures can no longer be excluded from protections because: (1) the disclosure was made to a supervisor or person participating in the legal violation, gross mismanagement, gross waste, abuse of authority or substantial danger to health or safety; (2) the disclosure revealed information that had already been disclosed; (3) the employee had an improper motive for making the disclosure; (4) the disclosure was made while the employee was off duty; (5) too much time passed since the occurrence of the events described in the disclosure.

Importantly, the WPEA does not extend its protections to individuals who work in the intelligence community or the FBI, as it is limited to unclassified environments.

The WPEA also requires the Inspector General for each agency to designate a Whistleblower Protection Ombudsman who will explain to employees the process for submitting retaliation claims with the Office of Special Counsel and process for filing disclosures.

Further, the WPEA provides for greater remedies. Federal whistleblowers may now pursue compensatory damages in addition to the reversal of adverse personnel actions. Please note that the WPEA provides that its whistleblower protections supersede agency non-disclosure agreements and that all such agreements signed after the WPEA went into effect must advise employees of this exception.

These protections also extend to safeguarding federal employees and employment applicants from retaliation in the form of prohibited personnel practices for making protected disclosures of fraud, waste, abuse, mismanagement, or substantial and specific danger to public safety or health.

Retaliation can include almost any personnel action, failure to take a personnel action, or threat to take a personnel action, which adversely affects the whistleblower, such as:

• A non-promotion;
• A disciplinary action;
• A detail, transfer or reassignment;
• An unfavorable performance evaluation;
• A decision concerning pay, benefits or awards; or
• A significant change in duties, responsibilities or working conditions.

Finally, the National Defense Authorization Act of 2013 (“NDAA”) enacted a pilot program which made it illegal for an employee of a federal contractor, subcontractor, grantee, or subgrantee to be discharged, demoted, or otherwise discriminated against for making a protected whistleblower disclosure. This can be found at 41 U.S.C. § 4712 titled “Enhancement of Contractor Protection from Reprisal.” In 2016, Congress amended the program to make these protections for contractors permanent.

Classified Information

As you might expect, reports of wrongdoing involving classified information are more complicated than reports involving unclassified information. An employee who includes classified information in a disclosure of fraud, waste, or abuse is not engaged in a “protected disclosure” unless the disclosure is made in accordance with the laws and rules that govern the proper handling and transmission of classified information.

The recipient of a report involving classified information must be an authorized recipient. Generally speaking, the most common form of disclosure in this sort of situation is to the Office of the Inspector General–but even that is only proper if an individual contacts the Office of the Inspector General through proper, classified means. A disclosure including classified information communicated to the Office of the Inspector General through its unclassified hotline will not be considered a protected disclosure.

If you have been adversely affected in your job for being a whistleblower or have evidence of an employer’s fraud, waste, and/or abuse and plan to disclose it, the Erlich Law Office can help you. For a consultation, please contact us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.