What is the Whistleblower Protection Act?
Resources for Federal Employee Whistleblowers
The whistleblower protection lawyers at Zuckerman Law represent employees in whistleblower protection and whistleblower retaliation claims nationwide. Our team includes two attorneys who served in senior positions at the U.S. Office of Special Counsel, the agency that enforces the Whistleblower Protection Act. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers.
If you are seeking representation in a Whistleblower Protection Act case, contact us by clicking here or call us at (202) 769-1681 or (202) 262-8959.
This page provides resources for whistleblowers in the federal government. For additional information about the Whistleblower Protection Act, see our article “Whistleblower Protections Under the Whistleblower Protection Act.”
For information on corporate whistleblower protections, including the Sarbanes-Oxley Act, click here. And for information on protections for employees of government contractors and grantees, click here.
Filing a Whistleblower Protection Act Claim
Whistleblower Protections for Federal Employees
The Whistleblower Protection Act protects federal employees, including 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 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.
Frequently Asked Questions About the Whistleblower Protection Act
- What is the Whistleblower Protection Act?
- What disclosures are protected under the Whistleblower Protection Act?
- Are disclosures to an Inspector General protected under the Whistleblower Protection Act?
- Does the Whistleblower Protection Act Prohibit Retaliation for Refusing to Obey an Order Requiring a Violation of Law?
- Does the Whistleblower Protection Act Prohibit Retaliation for the Exercise of Appeal or Grievance Rights?
- How does a whistleblower prove knowledge of protected whistleblowing?
- What is the causation standard in a Whistleblower Protection Act case?
- What is a personnel action under the Whistleblower Protection Act?
- How can a federal employee whistleblower seek relief for whistleblower retaliation?
- How do I file a claim under the Whistleblower Protection Act?
- What is an individual right of action appeal?
- What remedies are available under the Whistleblower Protection Act?
Guide to Whistleblower Protection Act
Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here.
The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act. This guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases. Topics covered include:
- What Disclosures are Protected Under the Whistleblower Protection Act?
- Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?
- Prohibited Forms of Whistleblower Retaliation
- Proving Knowledge of Protected Whistleblowing
- Proving Causation
- What is an Agency’s Burden to Avoid Liability Once the Whistleblower Has Proved Causation?
- Seeking Relief from Retaliation
- Election of Remedies
- Can OSC Seek a Stay of a Personnel Action?
- Damages or Remedies for Retaliation
- Gag Orders and Non-Disclosure Agreements
Co-authors Eric Bachman and Jason Zuckerman have represented employees in Whistleblower Protection Act claims and served in senior leadership positions at the U.S. Office of Special Counsel, the federal agency that enforces the Whistleblower Protection Act.
Leading Washington DC Whistleblower Protection Act Lawyers: Hire Former Senior OSC Officials to Prosecute Your Whistleblower Case
Zuckerman Law has represented whistleblowers before the Office of Special Counsel, Offices of Inspectors General, and Congressional oversight committees. The firm is uniquely qualified to represent whistleblowers in the federal government because two of the firm’s attorneys served in senior roles at the U.S. Office of Special Counsel.
- Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
- Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.
The firm has represented whistleblowers testifying before the House Financial Services Committee and vigorously opposed efforts to silence whistleblowers. The whistleblower protection lawyers at Zuckerman Law have also helped federal employees combat unlawful gag provisions in agency politics or agreements.
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