Whistleblower Protections for Federal Employees

As public servants, federal employees play an important role in maintaining government accountability. While there is no strict legal duty on government employees to disclose wrongful activity, our laws encourage them to do so as whistleblowers and provide strong protections against retaliation when they engage in protected whistleblowing activity. Even so, the law’s protections for whistleblowers are not absolute, and even protected whistleblowing can negatively impact a federal employee’s career and reputation. If you’re considering blowing the whistle, you should consider speaking to a Norfolk federal employment attorney beforehand to ensure that what you plan to do is within the bounds of federal whistleblower protection law.

The Whistleblower Protection Act (WPA)

The primary whistleblower protection law for federal employees is the Whistleblower Protection Act (WPA), codified at 5 U.S.C. § 2302(b)(8). Generally, the WPA protects disclosures made by federal employees concerning violations of laws, gross mismanagement, abuse of authority, and other wrongdoing. As an example, a government whistleblower could be a federal employee who discovers that her supervisor is being bribed to award lucrative contracts to government contractors. The WPA applies to most executive branch employees, former employees, and applicants, as well as employees of the Government Publishing Office, a legislative branch agency. Originally enacted in 1989, the WPA was greatly strengthened by the Whistleblower Protection Enhancement Act (WPEA) in 2012.

What Counts as a Protected Disclosure

The WPEA’s protections kick in when an employee makes a “protected disclosure.” Under the terms of the WPA (5 U.S.C. § 2302(b)(8)), a protected disclosure concerns the following:

Violations of laws, rules, or regulations
Gross mismanagement
Gross waste of funds
Abuse of authority
Substantial and specific dangers to public health or safety

For a disclosure to be protected, the employee must reasonably believe that wrongdoing occurred. That does not mean that the employee must be correct that wrongdoing occurred — only that they have a reasonable belief that it occurred.

The WPEA clarified that the above disclosures are protected even when:

The disclosure was made to a supervisor or an individual who participated in the activity that is the subject of the disclosure
The disclosure reveals information that has previously been disclosed
The employee’s motive for making the disclosure is questionable
The disclosure was made while the employee was off duty
The disclosure was made before the individual was appointed to or applied for their position
Time has passed since the occurrence of the events described in the disclosure

As you can see, the “protected disclosure” category is broad and applies even to what arguably could be considered edge cases. However, it is not unlimited. Protected disclosures do not include communications regarding policy decisions made under lawful exercises of discretionary authority. In other words, the basis of a protected disclosure cannot be the employee’s mere disagreement with their supervisor over otherwise lawful decisions; it must be an objectively unlawful or wrongful action. For further guidance on what constitutes mere disagreement vs. wrongful activity, please contact a Norfolk federal employment attorney.

Who Counts as an Authorized Recipient?

Federal employees must make their disclosures to the appropriate recipients in order to take advantage of the WPA’s protections, and the appropriate recipients depend upon the nature of the information.

For information that is not classified or otherwise required to be kept secret by law or executive order, the recipient can be anyone, including individuals outside the government (e.g., the news media).

For information that is classified or otherwise required to be kept secret, things get a little more complicated. This category of information may be disclosed only to Congress. However, a disclosure of classified information to Congress is protected only if (1) it has been classified by the head of an agency that is not an element of the intelligence community, and (2) it does not reveal intelligence sources and methods.

So, in a nutshell, disclosures may be made to the following recipients:

Non-classified information: Anyone
Classified information that does not contain intelligence: Congress
Classified information that contains intelligence: No one

Readers should be aware, however, that much has been written about the growing problem of overclassification in the federal government, which can affect whistleblower retaliation claims. If you have been told that you are not entitled to the WPA’s protections due to disclosure of arguably wrongfully classified information, you should seek the counsel of a Norfolk federal employment attorney.

How to Establish a Retaliation Claim

For many potential whistleblowers both inside and outside the government, the fear of retaliation is a powerful deterrent against blowing the whistle. In recognition thereof, the WPA prohibits retaliation against whistleblowers and other individuals who engage in protected activities (e.g., filing a complaint, cooperating in an investigation, refusing to obey an unlawful order, etc.). To establish a claim for retaliation under the WPA, a whistleblower must show:

They made a qualifying protected disclosure or engaged in a protected activity
The protected disclosure or activity was a contributing factor in an adverse personnel action

Showing that the protected disclosure was a contributing factor to an adverse employment action is typically the more difficult of the two elements to prove. The most common way to do so is via circumstantial evidence, such as by showing (1) the official taking the adverse action knew of the protected disclosure or activity, and (2) the adverse action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the adverse action. (5 U.S.C. § 1221(e)(1)). Once the employee has made that initial showing by a preponderance of the evidence, the burden then shifts to the agency to show by clear and convincing evidence that they would have taken the adverse action even in the absence of the protected disclosure.

Speak to a Norfolk Federal Employment Attorney If You’re Considering Blowing the Whistle

While whistleblowing is an admirable endeavor, it is not without risks. To ensure that your whistleblowing activity is fully within the bounds of the protections of the WPA and other federal whistleblower protection laws, you should consider speaking to an experienced attorney before making a disclosure. To get started, please contact a Norfolk federal employment attorney at Pierce / Jewett by calling 757-624-9323 or using our online contact form.