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The Whistleblower Protection Enhancement Act (WPEA)
On November 27, 2012 President Obama signed into law the Whistleblower Protection Enhancement Act of 2012 (WPEA). The main goals of this Act are to extend protection to more federal employees, expand the authority of administrative bodies that investigate and prosecute whistleblower retaliation claims and to afford a federal employee with more access to judicial due process.
First and foremost the WPEA is designed to encourage more federal employees to come forward by expanding who is protected. Under the WPEA a federal employee is now protected when they make a disclosure even if they are not the first person to report this information or if the disclosure is made during the regular course of their job duties, provided that they can show they were subjected to an adverse personnel action in retaliation for said disclosure. A federal employee is also protected if they make a disclosure to a supervisor or other person who they reasonably believe has been involved in the action they are reporting. In addition, their disclosure does not have to be in writing, while they are on duty or within a certain time frame from the occurrence of the events described in the disclosure.
Moreover, the WPEA extends protection to Transportation Security Administration employees; any federal employee who discloses censorship related to research, analysis or technical information; or a federal employee who discloses the consequences of a policy decision. Federal employees are cautioned, however, that WPEA does not cover a challenge to the validity of the government policy itself.
One more way that the WPEA seeks to broaden the scope of who is protected involves Agency non-disclosure policies. A non-disclosure policy must now clearly state that it is superseded by statutory rights or an Executive Order regarding classified information, communications with Congress, reporting to an Inspector General and other whistleblower rights. Failure to include this statement on future publications and Agency websites or failure to notify a federal employee of these rights before taking an adverse action for a violation of a standing non-disclosure policy may constitute a prohibited personnel action.
Besides expanding who is protected as a whistleblower, the WPEA also provides the Office of Special Counsel (OSC) with some important tools to more aggressively prosecute whistleblower claims of retaliation. The WPEA lowers the standards of proof required to impose disciplinary action upon those who took retaliatory action against a whistleblower, as they are no longer required to prove that retaliation was the only motivation for the disciplinary action. In addition the OSC is no longer responsible for paying attorney's fees if they are not the prevailing party in a disciplinary action against an Agency. The OSC will also be allowed to participate in an appeal of a Merit System Protection Board decision regarding allegations of retaliation for whistleblowing by filing an amicus, or fried of the Court, brief. It is anticipated that increased involvement by the OSC will lead to more desirable outcomes for federal employees seeking corrective action against an Agency official.
Another important tool the WPEA provides is the addition of a Whistleblower Protection Ombudsmen to each agency's Inspector General's Office. The Ombudsman's role is to educate agency personnel about prohibitions on retaliation for protected disclosures. The Ombudsman will also be able to explain the OSC compliant process for filing whistleblower disclosure, assist an employee in making a confidential communication of wrongdoing and to submit a retaliation claim. While the Whistleblower Protection Ombudsmen is a valuable resource for information, the WPEA is clear that the Ombudsman is prohibited from acting as a legal representative, agent, or advocate of a current or former employee.
Other significant provisions of the Whistleblower Protection Enhancement Act involve the roll of the Merit System Protection Board (MSPB) and appellate court's in the litigation of a whistleblower retaliation claim. Currently a federal employee can only file an appeal of a MSPB decision to the Federal Circuit Court of Appeals. Under the WPEA appeal rights will be extended to Federal Circuit Courts for a two year experimental period. By allowing other jurisdictions to hear these appeals it is hoped that a fresh perspective will lead to new case law that will further expand the rights of whistleblowers. The WPEA also overturns a MSPB practice that allows an Administrative Judge to rule on an appeal of an adverse personnel action prior to the whistleblower presenting their evidence of retaliation. Finally, the WPEA gives judicial authority to award compensatory damages for prevailing parties after an administrative hearing or in cases where an Agency was found to have conducted a retaliatory investigation.
The Whistleblower Protection Enhancement Act will become effective 30 days from the date of the President's signing it to law at which time we will begin to see the practical application of these provisions. As with any new legislation the WPEA is subject to interpretation and Agencies will be eager to push the limits of the OSC and MSPB on enforcing these provisions. If you have made or are considering making a protected disclosure of government waste, fraud or mismanagement of resources, it is wise to consult an experienced federal employment attorney to ensure that you are receiving all of the protections you are entitled to as a whistleblower.