Protected Whistleblowing Under the Whistleblower Protection Act
A federal employee or applicant makes a protected disclosure if the individual reasonably believes the disclosed conduct constitutes any of the following:
- A violation of any federal 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. (5 U.S.C. § 2302(b)(8)(A).)
An employee’s general philosophical differences or disagreements with agency decisions or actions are not protected unless there is a reasonable belief that these differences or disagreements show one of the above categories of wrongdoing (Webb v. Dep’t of the Interior, 122 M.S.P.R. 248, 252 (2015)).
Reasonable Belief in Whistleblower Protection Act Cases
An employee need not prove that the matter disclosed actually was unlawful, gross mismanagement, or a gross waste of funds, abuse of power, or a danger to public health or safety. The employee must instead show that a person standing in the employee’s shoes may reasonably believe, given the information available to the employee, that the disclosed information evidences one of the statutory types of wrongdoing (Webb, 122 M.S.P.R. at 251). The reasonableness inquiry focuses on the perception of the employee, not the audience.
No Required Channel for Whistleblowing Under Whistleblower Protection Act
An employee may disclose information to any person, except where the information is required by law or presidential order to be kept confidential. There is no requirement that an employee proceed incrementally through the employee’s chain of command.
The WPA also protects any disclosure that meets the other statutory requirements. Overturning prior case law, the WPEA clarified that a whistleblower disclosure is protected:
- Even when it is made to the supervisor or person who participated in the disclosed wrongdoing.
- Even if it reveals information that was previously disclosed. No matter what the employee’s motive is for making the disclosure.
- Whether the employee was on duty or off duty when making the disclosure.
- Regardless of the amount of time that has passed since the occurrence of the events described in the disclosure.
- Even if the disclosure is made during the normal course of the employee’s duties.
(5 U.S.C. § 2302(f).)
Guide to the 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.
Drawing on their experience enforcing the WPA at OSC and representing whistleblowers in private practice, the 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
What is the Whistleblower Protection Act?
Experienced Washington DC Whistleblower Protection Act Lawyers
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 policies or agreements.
If you are seeking representation in a whistleblower protection case, click here, or call us at (202) 769-1681 or (202) 262-8959 to schedule a free preliminary consultation. And to learn more about whistleblower protections for federal employees, see Whistleblower Protections Under the Whistleblower Protection Act.