Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
As with all legal claims, deadlines are crucial. While the WPA itself does not have a deadline to file a claim, related provisions of federal law require federal employees to appeal any adverse actions to the MSPB within 45 days.
What protection does the WPA offer as rewards to whistleblowers?
The Whistleblower Protection Act makes it illegal to fire or otherwise take adverse action against federal employees who engage in whistleblowing activities. The WPA provides a clear procedure for filing retaliation complaints. Whistleblowers who win their case may be reinstated with back pay or otherwise made whole at work, and also may receive attorney fees, other costs, and uncapped compensatory damages.
What sort of behavior is protected under the WPA?
Examples of whistleblower activities protected under the WPA include:
- Cooperating with or disclosing information to an Inspector General or Special Counsel;
- Refusing to obey an order that would violate law;
- Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
- Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
What sort of whistleblower retaliation is prohibited?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee’s terms, conditions, or privileges of employment. This includes:
- Denial of benefits
- Denial of overtime or promotion
- Failure to hire or promote
- Reductions in pay
What can whistleblowers recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes:
- Back pay for lost wages
- Compensatory damages
- Litigation costs and attorney fees
How do I claim protection under the Whistleblower Protection Act?
Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may:
- state a claim with the Office of Special Counsel (OSC);
- pursue an individual right of action before the Merit Systems Protection Board (MSPB);
- appeal to the MSPB regarding an agency’s adverse action against the employee; or
- initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place.
If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What standards must I meet to prevail under the Whistleblower Protection Act?
To be protected under the WPA, an employee must show by a preponderance of the evidence that:
- the employee made a protected whistleblowing disclosure; and
- a protected disclosure was a contributing factor in the agency’s adverse action.
The protected disclosure need not involve an actual violation of law; in a landmark decision in favor of a TELG client, the U.S. Court of Appeals for the Federal Circuit held that it’s sufficient for a whistleblower to act on a reasonable belief that there was a violation of a law, rule, or regulation.
If an employee meets this burden, he or she can win the case unless the agency establishes by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected whistleblowing disclosure.
Primary protection comes from the Whistleblower Protection Act of 1989, along with the Civil Service Reform Act of 1978 — plus follow-ons to both laws, including the No-FEAR Act of 2002 and the Whistleblower Protection Enhancement Act of 2012. Government employees also are protected from retaliation by the First Amendment, within certain limits, and by Presidential Policy Directive 19, which President Obama signed in 2012.