The Whistleblower Protection Act (WPA) covers federal employees against retaliation for disclosing information that they believe proves:
- A gross waste of funds
- A violation of any regulation or law
- An abuse of authority
- Censorship related to technical information, analysis or research that leads or will lead to an abuse of power, mismanagement or gross government waste, a specific or substantial danger to the public safety or health or any violation of the law.
The Whistleblower Protection Enhancement Act of 2012 makes it clear that disclosure doesn’t lose protection where:
- It was made to someone who took part in the illegal act disclosed
- It disclosed information that was already known
- The applicant has motives for revealing the information; or
- Time has passed since the reported incidence happened
Retaliation for whistleblowing
The Whistleblower Protection Act forbids the taking of a wide spectrum of personnel actions in retaliation for whistleblowing, such as demotions, removals, pay decisions, and significant changes in responsibilities, duties or working conditions. The law also bars a company from enforcing or implementing any nondisclosure agreement, form or policy that fails to inform an employee that the agreement doesn’t conflict with, supersede or otherwise alter whistleblower protections and rights.
Determining whistleblower retaliation under WPA
Proving whistleblower retaliation under the WPA is very favorable to victims. A whistleblower can win by arguing that protected action played a role in the retaliation. The company can avoid legal action if they only prove beyond reasonable doubt that they still would have followed through with the same employment action even without the employee’s protected whistleblowing.
Judges will look:
- At the strength of the company’s evidence that supports the personnel action
- If the executives involved had the motive to retaliate against the employee
- Any proof that the company takes the same actions against employees in similar situations, who are not whistleblowers.
Relief or damages for federal employee whistleblowers
If a whistleblower wins over the lawsuit, they can recover attorney’s fees, lost wages, equitable relief (including a suspension, rescinding, reinstatement, adjusting a performance assessment and so on) as well as compensation for emotional distress damages.
The whistleblower can also get compensation for costs, fees or damages that resulted from the retaliatory investigation. These investigations can take different forms, including unwarranted referrals for civil or criminal investigations or excellent reviews of attendance and time records.
Filing a WPA complaint
The Civil Service Reform Act prohibits retaliation against whistleblowers. An experienced employment attorney can file a claim alleging whistleblower retaliation. An employee will need these elements to prove that they were indeed retaliated against:
That they took part in a protected activity such as testifying as a witness, reporting a violation, or other actions to help in law enforcement (one may still have a claim if they suffered retaliation because their boss mistakenly pointed them as a whistleblower).
- That the agency/employer believed or knew that they took such protected activity
- That they suffered an adverse personnel action
- That the protected activity made the employer to take the adverse employment action