You have the right to disclose information you reasonably believe involves a violation of law rule regulation, mismanagement, fraud waste or abuse without fear of reprisal under the Whistleblower Protection Act (WPA). An employee needs to show that a disclosure was a contributing factor in a personnel action by showing that the official taking the action knew of the disclosure, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. However, employees generally have no protection for statements of facts publicly known already, or for those statements made in connection with the employee’s normal employment duties. Employees are also not protected when they make disclosures to immediate supervisors. The employee must disclose statements that are protected under the WPA to higher authorities who have the ability to correct the alleged abuse, and subject the offender to discipline of some sort for their actions.
The Whistleblower Protection Act prohibits agencies from retaliating against employees and applicants because they disclosed such information. Whistleblower reprisal refers to the actual or threatened taking or withholding of a personnel decision in retaliation for a protected disclosure of fraud, waste or abuse under 5 USC 2302 (b)(8). A prohibited personnel practice occurs if a supervisor recommends, approves, or takes a personnel action enumerated in 5 USC 2302(a)(2) for the reasons specified under 5 USC 2302(b)(8).
Under 2302(a) a personnel action qualifies as:
- An appointment;
- A promotion;
- An action under Chapter 75 of this title or other disciplinary or corrective action;
- A detail, transfer, or reassignment;
- A reinstatement;
- A restoration;
- A reemployment;
- A decision concerning pay, benefits, or awards, or education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
- A decision to order psychiatric testing or examination;
- Any other significant change in duties, responsibilities, or working conditions.
Employees seeking protection from any of these adverse personnel actions can claim status as whistleblowers and take their cases to the Office of Special Counsel (OSC) which is part of the Merit System Protection Board. However, if the OSC ends its investigation without action, a worker can seek further help through an individual right of action appeal (IRA) to the Merit Systems Protection Board, which was also created by the Whistleblower Protection Act. To satisfy the exhaustion requirement of 5 USC 1214 (a)(3) in an IRA appeal, an appellant must inform the OSC of the precise ground of his or her charge of whistleblowing, giving the OSC a sufficient basis to pursue an investigation that might lead to corrective action. If the Board finds that a prohibited personnel practice did occur, it is entitled to remedy the personnel action taken against the employee in a variety of ways, including, but not limited to the award of consequential damages.