Difference between revisions of "Whistleblower Protection Laws"

Line 427: Line 427:

='''Whistleblower Protection Act'''=
='''Whistleblower Protection Act'''=
The Whistleblower Protection Act protects federal employees, including [https://www.zuckermanlaw.com/legal-services/whistleblower-protection-act-lawyers/veterans-affairs-whistleblower-attorneys-help-for-va-whistleblowers/ Veterans Affairs whistleblowers], against retaliation for making any disclosure that a federal employee reasonably believes evidences:
*a violation of any law, rule, or regulation;
*gross mismanagement;
*a gross waste of funds;
*an abuse of authority;
*a substantial and specific danger to public health or safety; or
*censorship related to research, analysis, or technical information that cause, or will cause, gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.
The [https://www.zuckermanlaw.com/wp-content/uploads/2019/01/Whistleblower-Protection-Enhancement-Act.pdf Whistleblower Protection Enhancement Act of 2012] clarifies that a disclosure does not lose protection where:
*the disclosure was made to a person, including a supervisor, who participated in the wrongdoing disclosed;
*the disclosure revealed information that had previously been disclosed;
*of the employee or applicant’s motive for making the disclosure;
*the disclosure was made while the employee was off duty;
*of the amount of time which has passed since the occurrence of the events described in the disclosure; or
*the disclosure was made during the employee’s normal course of duties, providing the employee is able to show that the personnel action was taken in reprisal for the disclosure.
=='''Prohibited Forms of Whistleblower Retaliation (Personnel Actions)'''==
The WPA prohibits the taking of a broad range of personnel actions in retaliation for whistleblowing, including removals, demotions, reassignments, pay decisions, as well as significant changes in duties, responsibilities, or working conditions.  In addition, the Whistleblower Protection Enhancement Act prohibits an agency from implementing or enforcing any nondisclosure policy, form, or agreement that fails to notify an employee that the agreement does not supersede, conflict with, or otherwise alter whistleblower rights and protections.
=='''Proving Whistleblower Retaliation Under the Whistleblower Protection Act'''==
The burden of proof under the Whistleblower Protection Act is very favorable to whistleblowers.  An employee can prevail by showing that protected whistleblowing was a contributing factor in the personnel action.  The agency can avoid liability only if proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the employee’s protected whistleblowing.
To determine whether an agency has met its burden via clear and convincing evidence, judges evaluate (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers.
=='''Damages or Relief for Federal Employee Whistleblowers'''==
A prevailing whistleblower can recover lost wages, attorney’s fees, equitable relief (e.g., reinstatement, rescinding a suspension, modifying a performance evaluation, etc.) and uncapped compensatory damages (emotional distress damages).  In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation.  Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.
=='''Filing a Whistleblower Protection Act Complaint'''==
Whistleblower retaliation is a prohibited personnel practice under the Civil Service Reform Act.  A complaint alleging a prohibited personnel practice can be filed at the U.S. Office of Special Counsel.  If you have suffered retaliation for protected whistleblowing that is also appealable to the Merit System Protection Board, you  may elect to pursue a remedy through one of three remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance under a collective bargaining agreement; or (3) a complaint filed with OSC, which can be followed by an Individual Right of Action appeal filed with the Board.  This election of remedies does not affect the right to pursue an EEO complaint, i.e., an employee can pursue both an EEO complaint and an OSC complaint simultaneously.
='''Energy Reorganization Act'''=
='''Energy Reorganization Act'''=
Section 211 of the Energy Reorganization Act (ERA) protects employees who disclose concerns about nuclear safety or a violation a Nuclear Regulatory Commission (NRC) rule or regulation.
Section 211 of the Energy Reorganization Act (ERA) protects employees who disclose concerns about nuclear safety or a violation a Nuclear Regulatory Commission (NRC) rule or regulation.