Late in the actions of the 112th Congress, the 2012 Whistleblower Protection Enhancement Act finally passed both houses of Congress and was signed by the president. This is the first meaningful whistle-blower protection reform since 1994. It will now be easier to protect whistle-blowers and take disciplinary action against those who have retaliated against them.
The reality for most managers is that for the past decade or longer, whistle-blower issues have not been a part of their workplace dynamic.
Because of a series of court decisions, mostly in the late 1990s, would-be whistle-blowers found it difficult to get protection, and those that might do the protecting — like the Office of Special Counsel — found it more difficult to apply existing law to obtain a just result.
The main reason for this has been the narrowing of what it means to make a protected disclosure. Usually, a protected disclosure is telling someone about a violation of law, rule or regulation, gross mismanagement, gross financial irregularity, abuse of authority or specific threat to health or safety. But court decisions had said that if such a disclosure was made to a supervisor the whistle-blower was accusing of wrongdoing, then that person was not protected. The theory of the court decisions was that for a whistle-blower to be protected, he needed to report wrongdoing to someone who could fix it.
The second narrowing of the term “disclosure” was to deny protection to someone who disclosed wrongdoing as part of his job. This would mean that if you found something wrong in the course of performing your duties and reported it because your job required you to report it, and then experienced reprisal for not letting well enough alone, you were not protected.
All of this has now changed. The definition of “disclosure” and the circumstances concerning who is protected have been greatly expanded. No longer will someone who has made protected disclosures be denied protection on a technicality.
Also, the new law changes the rules on disciplining retaliating managers to make such disciplinary actions more likely. The Office of Special Counsel has always had the authority to file a case against a manager it believes has retaliated against a whistle-blower. But managers have rights too, and sometimes OSC has been unsuccessful in a prosecution.
When that happens, the question is: Who pays the manager’s attorneys’ fees? As a result of a court decision about 10 years ago, the rather small Office of Special Counsel had to pay fees to a manager who successfully defended a disciplinary charge of whistle-blower reprisal. This had the effect of reducing the threat of disciplinary actions as more meritorious cases focused on corrective action or efforts by OSC to encourage agencies to discipline offending managers. Now the manager’s employing agency pays the attorneys’ fees.
The result of the narrow definition of “disclosure” and the requirement of who pays fees to successful managers has been less whistle-blower protection. That is changing with a reinvigorated Office of Special Counsel, headed by Carolyn Lerner. She has been aggressively pursuing whistle-blower cases, and the new law provides more tools to do this. Managers must respect the right of their employees to disclose wrongdoing and resist the temptation to retaliate.
Often, the issue in a whistle-blower case is whether the manager is retaliating or whether the whistle-blower is a problem employee trying to hide behind whistle-blower laws. The new law recognizes this tension and provides a tool for managers to protect themselves if a would-be whistle-blower is deserving of disciplinary or other administrative action. If the manager can show that the action against an employee would have occurred in the absence of whistle-blowing, the manager can win. Of course, to do this, the manager must have documentation.
The manager who fails to document actions in an appropriate and timely way risks being found guilty of whistle-blower reprisal. Penalties are severe and include removal from service.
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