Whistleblower Protection

drawing of red whistle

Attorneys in the Employment and Labor Law Unit (ELLU) provide advice and guidance to Department of Interior managers and supervisors on whistleblower protection laws and personnel actions that may expose the Agency to liability under those laws. The ELLU also defends the Agency against claims of whistleblower retaliation.

What is Whistleblower Retaliation?

Congress passed the Whistleblower Protection Act of 1989 (WPA), which, among other things, was intended to strengthen and improve protections for the rights of federal employees and to prevent reprisals.  The purpose of the WPA was to help eliminate wrongdoing within the government by mandating that employees should not suffer adverse consequences as a result of disclosing a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a “substantial and specific danger” to public health or safety.

The WPA and subsequent amendments to the whistleblower protection laws prohibit Agency officials from taking, failing to take, or threatening to take a personnel action because of an employee’s whistleblowing.

To prove whistleblower retaliation:

1. The employee must have disclosed what he or she reasonably believes to be: a violation of law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety;

2. The personnel action in question must have been taken (or not taken, such in the case of a promotion), threatened, or influenced by an official who knew of the employee’s disclosure; and

3. The employee’s disclosure was a contributing factor in the personnel action.

Appeal Rights of Whistleblowers Who Allege Retaliation

The Merit Systems Protection Board (MSPB) has jurisdiction to adjudicate whistleblower appeals and, if whistleblower retaliation is proven, it has the authority to order an agency to take corrective action for whistleblower retaliation.  The MSPB can also award the whistleblower back pay, and certain reasonable and foreseeable consequential damages such as medical costs and travel expenses, and compensatory damages. In some cases, the MSPB may also award attorney's fees.

However, only whistleblowers who legally fall within the MSPB’s jurisdiction may seek such relief. The WPA allows a whistleblower who has suffered reprisal to appeal a personnel action that is not normally appealable to the MSPB if he or she first files a complaint with the Office of Special Counsel (OSC) and exhausts his or her administrative remedy with OSC.  An individual who is challenging an action that is already directly appealable to MSPB (e.g., a removal or suspension for more than 14 days) may raise his or her whistleblowing activity as an affirmative defense to that action.

OSC provides guidance on whistleblower laws and remedies.  An employee who is aware of potential violations of whistleblower laws may also contact the Office of Inspector General.

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