Federal employees often encounter problems at work that they want to report, but sometimes fear retaliation. The Merit Systems Protection Board (MSPB) has recently set out guidelines that provide details about what is considered lawfully protected whistleblowing (“protected disclosures”), and what steps an employee must take to be covered by law and legal protections.
Not every error or misstep by management is covered. Instead, the disclosure must be about a serious matter and include claims of either: gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific threat to public safety or health. Not every violation of law, rules, or regulation matters. The violation must have potentially serious consequences. The person making the disclosure doesn’t have to be right that there was a violation of law, etc., but his/her belief about such wrong doing has to be reasonable under the circumstances in order for the protections to apply.
The disclosure must also be made outside the normal duty chain and to someone other than the wrong doer. For example, an inspector that learns of misconduct would report it beyond the normal work procedures, and not to the person suspected of the wrong doing.
The disclosure itself must go beyond the employee’s normal duties. Disclosures can be made to any number of sources, including the media, Congress, the OSC, OIG, upper level management, etc.
In order to have a claim of retaliation, the person making the disclosure must suffer a tangible injury or threat of one. So, there must be either a personnel action or withholding of a personnel action, or the threat to act or fail to act. There is no minimum level of discipline needed, so a reprimand would suffice, as would the denial of a raise, promotion or transfer. The harmful personnel action must also be linked with, or connected to, the disclosure. But, this nexus can be demonstrated by the timing of the actions or other circumstantial evidence.
Lastly, the employee must attempt to resolve the matter through other means before the MSPB will have jurisdiction. This often means the employee would have to file a charge with the Office of Special Counsel and wait for OSC to investigate and issue a report (120 days before employee can go to MSPB). However, collective bargaining agreements that allow employees to site violations of law could also file whistleblower retaliation claims as part of a grievance process as well.
There are numerous remedies an employee can obtain if he is successful in appealing a whistleblower retaliation action. Employees can receive complete make whole relief such as reinstatement, back pay, lost benefits, removal of documents from their files, or attorney’s fees. Offending managers can also be subject to suspension or other discipline as a result of engaging in retaliation or other “prohibited personnel practices.”
Whistleblower protections can be a powerful tool. But, employees must know their rights whenever they would pursue such a claim.
A full copy of the report, Whistleblower Protection For Federal Employees, was issued on Dec. 7 and can be found at mspb.gov.