What Is the Whistleblower Protection Act?

The Whistleblower Protection Act passed in 1989

It offered protection to any federal employees bringing to light the possible existence of departmental: 

• Abuse of authority
• Actions that might affect the health and safety of the public
• Gross waste of funds
• Violations of statute or regulations
• Mismanagement of public money or resources

It also provides far-ranging protections for employees blowing the whistle. 

Under the law, federal agencies break the law if they retaliate against employees in any way for their disclosure of information. Whistleblower Protection Act examples include: 

• Firing or laying off somebody when no termination was previously planned
• Demoting the employee
• Disciplining them for bringing illegal activity to light
• Denying standard benefits
• Harassment and intimidation
• Making threats of any kind
• Reducing hours or pay
• Using subtle tactics, such as ostracism, mockery, isolation, bullying or making false claims of “poor performance”
• Blacklisting an employee, harming their future employment prospects 
• Making working conditions unbearable in an attempt to “out” the employee

Who can federal employees approach to make their complaints? 

While it is important to consult with an attorney who represents your interests before filing a complaint, the federal government provides several institutions designed to help employees bring their complaints forward. 

The first of these is the Office of Special Counsel or OSC. This agency investigates whistleblower complaints directly. Since 2011, it has also been responsible for protecting federal employees from prohibited practices. 

Federal whistleblowers can also use the Merit Systems Protection Board. This agency adjudicates whistleblower complaints. Unfortunately, it has a track record of protecting the government, not employees, with more than 53 of the 56 cases since 2000 going in favor of federal agencies. 

For this reason, lawmakers also established the Court of Appeals for the Federal Circuit under Article III of the US Constitution in 1982. It is the only US court that will hear appeals of cases decided by the Merit Systems Protection Board.

The Whistleblower Protection Enhancement Act (WPEA)

Given the limitations of the original WPA, Congress enacted the Whistleblower Protection Enhancement Act (WPEA) in 2012. This piece of legislation is intended to strengthen protections for federal employees who blow the whistle. 

The WPEA cleared up some of the misunderstandings of the previous bill. It stated that employees would not lose protection if: 

• They disclosed what they knew to a supervisor (and not the Office of Special Counsel)
• Somebody else had already disclosed the wrongdoing
• The amount of time since the event was too long
• The employee made the disclosure while off duty
• The employees had an ulterior motive for reporting the wrongdoing
• The employee made the disclosure during their normal working hours

The Whistleblower Protection Act 2019

The Whistleblower Protection Act of 2019 is another attempt by lawmakers to strengthen the whistleblower system. The act is not yet law, but it was introduced and did pass the House. 

The legislation, if passed, will mainly concern the whistleblower rewards. Under the Act, whistleblowers would get between 10 and 30 percent of the fines collected by disciplinary proceedings for sanctions over $250,000. Lawmakers hope the plan will encourage whistleblowers to come forward when they suspect wrongdoing or foul play on the part of government departments. 

Similar systems are already proving highly successful in other areas. For instance, the SEC Whistleblower Program has generated billions in recovered tax fraud. 

Whistleblower Protection Act cases

A number of Whistleblower Protection Act cases have made their way through the courts, shaping how it applies in reality. In the 2006 case of Garcetti v. Carballos, the Supreme Court said that government employees do not have protection against employer retaliation under the First Amendment. 

Following this ruling, the Merit Systems Protection Board and the Federal Circuit Court of Appeal followed suit. Since 2006, they have only accepted whistleblower requests for protection between two and three percent of the time. 

More recent cases, however, have been more positive. For instance, TSA employee Rober MacLean blew the whistle on the agency’s decision to cut funding for air marshals.

Initially, the Merit Systems Protection Board dismissed his claim. However, MacLean stated that his whistleblowing activity did fall under the Whistleblower Protection Act of 1989 since his disclosure involved a risk to public health. The Supreme Court agreed in a 7-2 decision in 2015.

How to file a whistleblower complaint if you are a federal employee

Federal employees can use any of the following methods to file a whistleblower complaint: 

• Online: Many agencies, such as the OSHA, have a complaints form that employees to use to raise concerns or issues
• Fax/Mail/Email: Employees can also send complaints to the relevant authorities electronically
• Telephone: The rules permit calling the relevant representative 
• In-person: Many government departments also allow employees to make their complaints in person, either verbally or written down

Getting legal advice from attorneys

So what is the Whistleblower Protection Act? Essentially, it’s a law designed to protect the public against waste, fraud, or embellishment of the federal government. It’s a tool that individual employees of good conscience can use on behalf of taxpayers. And, if successful, they can receive a substantial award for themselves and their families. 

While various Whistleblower Protection Acts attempt to give federal employees protection, some aspects of the system still work against them. That’s why it is so important to get effective legal advice from experienced attorneys before filing a claim. Federal employees can win their cases, but they need to present them effectively.

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