Blowing the Whistle
My own appreciation for the vital importance of laws to protect whistleblowers extends back to my childhood in Michigan. My family moved to Michigan only a few years after the cover up of a chemical company’s introduction of toxic polybrominated biphenyls (PBB) into animal feed poisoned the meat and milk of over 30,000 cattle. I grew up on stories of farmers shooting and burying their entire herds, and for years my parents would only buy meat and milk produced outside Michigan. Because employees of the chemical company had been intimidated into concealing the accident by threats to their jobs, it came as no surprise that Michigan enacted the first state whistleblower law in 1981. Today, in addition to state laws, there are at least 18 federal laws intended to provide protection for whistleblowers in areas ranging from the financial sector to environmental laws to food safety laws. See, e.g., Jon O. Shimabukuro and L. Paige Whitaker, Whistleblower Protections Under Federal Law: An Overview.
Blowing the Whistle
The principal act providing for and protecting disclosure of waste, fraud, and abuse on the part of covered federal employees is the Whistleblower Protection Act.
The United States Office of Special Counsel (OSC) handles complaints of prohibited personnel practices and whistleblower disclosures regarding federal agencies pursuant to 5 U.S.C. 1213. As stated on the OSC’s website, the following types of disclosures fall within the OSC’s jurisdiction:
DU attorneys review five types of disclosures specified in the statute: violations of a law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; and a substantial and specific danger to public health or safety. 5 U.S.C. § 1213(b). The disclosures are evaluated to determine whether or not there is sufficient information to conclude with a substantial likelihood that one of these conditions has been disclosed.
Federal employees may make disclosures to the OSC electronically.
Prohibited Personnel Practices (Reprisal)
The Whistleblower Protection Act also makes it illegal to take an adverse personnel action against a federal employee who has made a protected disclosure, and provides for three avenues to challenge retaliation for blowing the whistle:
- A federal employee facing an adverse personnel action (such as termination) may raise an allegation of retaliation for a protected disclosure of information as an affirmative defense in a proceeding before the Merit Systems Protection Board.
- A federal employee may ask the Office of Special Counsel to investigate an allegation of retaliation for making a protected disclosure, and the Office of Special Counsel can seek corrective action through the Merit Systems Protection Board.
- On his own, a federal employee may file an Individual Right of Action (IRA) claiming retaliation for a protected disclosure of information.
While an employee subjected to retaliation for making a protected disclosure should certainly investigate his legal remedies to the fullest, an employee contemplating making a disclosure should bear in mind that the law is at best an imperfect protection for those who have provoked the federal government.