FAQ: Whistleblower Protection Act

Q: What is the Whistleblower Protection Act (WPA)?

The Whistleblower Protection Act protects “any disclosure of information” by federal government employees that they “reasonably believes evidences an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety.”

It prohibits retaliation such as demotions, pay cuts, or dismissals for blowing the whistle and provides legal remedies to whistleblowers who experience such retaliation. It also allows whistleblowers to make their disclosures confidentially.

Q: When did it become a law?

The Act was originally passed as part of the Civil Service Reform Act of 1978 and has been amended three times since – in 1989, 1994, and 2012.

The most recent update was the Whistleblower Protection Enhancement Act (WPEA), passed in November 2012. WPEA contains important advances, including expanding the definition of “protected disclosure” and permitting whistleblowers to collect compensatory damages.

Q: Who is protected under the WPA?

The Act protects federal whistleblowers who work for the government. However, it specifically excludes whistleblowers in the intelligence community and those who work for the FBI, focusing on employees who work in an unclassified environment.

Q: Do federal employee whistleblowers not covered by the WPA have legal protections?

Yes. Members of the intelligence community are covered under the Intelligence Community Whistleblower Protection Act of 1998, as well as the Intelligence Authorization Act for Fiscal Year 2014 and Presidential Directive 19. You can learn more about those protections here . FBI whistleblowers are protected from reprisals for making a protected disclosures under U.S. Code § 2303 as well as the FBI Whistleblower Protection Enhancement Act of 2016. You can learn more about those protections here. In general, intelligence community and FBI whistleblower protections are weaker than those offered to other federal whistleblowers, with fewer remedies for retaliation.

Q: What is covered by “any disclosure” under the WPA?

The Whistleblower Protection Act's “any disclosure” language is deceptively broad as some information may be prohibited by law from being revealed to the public.

Under the Whistleblower Protection Enhancement Act (WPEA), “any disclosure” was clarified to include: • Disclosures made to a supervisor • Disclosures that revealed information that had been previous disclosed • Disclosures not made in writing • Disclosures made while the employee was off duty

The WPEA also specified that disclosures could not be excluded because of the “employee or applicant’s motive for making the disclosure” or because of the “amount of time which has passed since the occurrence of the events described in the disclosure.”

Q: To whom can federal employees make protected disclosures under the WPA?

The Whistleblower Protection Act (WPA) explicitly protects disclosures to the Office of the Special Counsel and the Office of the Inspector General. Each executive agency has an Inspector General.

The WPA also protects disclosures to Congress.

Q: Who investigates complaints under the WPA?

Under the WPA, the Office of the Special Counsel investigates federal whistleblower complaints. These complaints can be filed confidentially.

The primary mission of the OSC is to “safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.”

Q: Who adjudicates complaints under the WPA?

The Merit System Protection Board (MSPB) is a quasi-judicial agency established in 1978 that adjudicates whistleblower complaints. The primary mission of the MSPB is to “protect the merit system principles and promote an effective federal workplace free of prohibited personnel practices.”

There are three members on the panel who are appointed by the President and confirmed by the Senate. Two of the three members must be of the President’s own political party, while the third must be of the opposing party. Terms are for seven years.

The board has lacked a quorum since early 2017 and since March 2019 has had no sitting members.

Q: Can federal employees appeal a decision made by the MSPB?

Yes. You can appeal to the Court of Appeals for the Federal Circuit, the only court allowed to hear the appeals of whistleblower cases decided by the merit board.

However, it has been criticized by Senator Chuck Grassley and others in Congress for misinterpreting whistleblower laws and setting a hostile precedent for whistleblower claimants. According to a 2012 report from the Committee on Homeland Security and Governmental Affairs, the Court has “accorded a narrow definition to the type of disclosure that qualified for whistleblower protection.”

Q: What are the remedies for retaliation under the WPA?

The Whistleblower Protection Act has provisions for the following remedies if the MSPB finds retaliation has occurred: • Reinstatement to the whistleblower’s former job • Attorney’s fees • Back pay (wages and benefits lost as a result of being unlawfully terminated) • Medical costs incurred • Travel expenses • Reasonable and foreseeable consequential damages • Compensatory damages (including interest, reasonable expert witness fees, and costs)

Q: Is there a statute of limitations under the WPA?

No, there is no statute of limitations under the Whistleblower Protection Act. Complaints can be filed at any time with the Office of the Special Counsel.

Q: Do federal employees have to report under the WPA?

No, there are several other laws that federal employees can utilize, particularly for violations of environmental laws. Federal employees can file cases under the Clean Air Act, Safe Drinking Water Act, and Solid Waste Disposal Act.

If federal employees choose to report under these laws, their complaints will be investigated by Occupational Safety and Health Administration rather than the Office of the Special Counsel and adjudicated by a statutory Administrative Law Judge rather than the Merit System Protections Board.

Q: What is NWC doing to better protect federal whistleblowers?

One of NWC’s key priorities is working to ensure federal employee whistleblowers gain access to a jury trial in federal district court.

In 2009, we published an open letter along with 285 other public interest organizations and corporations demanding employees be granted the right to trial by jury.

In the years since, we have led a grassroots campaign urging Congress to pass legislation regarding federal employees’ access to federal court. You can join our campaign by writing to your representatives here.

Q: How can I get help?

If you need additional help or want to contact an attorney, please fill out a confidential intake form. You can also visit NWC’s Find an Attorney page.

For additional information on federal employee whistleblower rights, please read Rules 13 and 14 published in The New Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself (Lyons Press, 2017).

An online resource for the Whistleblower Handbook is also available free of charge. It is indexed to the specific rules and contains links to the relevant statutes. The online resource is available here.

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