Whistleblower

The New York Times published opinion article by a member of the Trump Administration describing efforts by federal employees to prevent and oppose misconduct by the Administration.  The Administration has since launched an inquiry to find and intimidate employees that may be whistleblowers.  These actions demonstrate how important it is that federal employees know their rights under federal whistleblower laws.  These protections are broad, covering a wide range of disclosures related to government misconduct. Even federal employees who did not blow the whistle, but are perceived to have done so, are protected by the Whistleblower Protection Act.

Whether a federal employee is actually protected under whistleblower laws depends heavily on the circumstances.  Those that feel they have been targeted as actual or perceived whistleblowers should consider the options available to them, including contacting the U.S. Office of Special Counsel.  Federal employees looking to determine their particular rights under federal whistleblower protections should consult an attorney, and can contact Kator, Parks, Weiser & Harris, PLLC.

Given reports about the current administration’s reported use of gag orders at agencies like EPA and the Department of Health and Human Services, it is more important than ever for federal employees to understand their free speech rights. Federal employees keep their free speech rights when they join the government and after they leave.  These rights are protected under the Constitution, federal whistleblower laws, and other laws.  Attempts to restrict these rights through gag orders can be illegal and unconstitutional.

First and foremost, federal employees retain their free speech rights under the First Amendment.  The Supreme Court recognizes government employees’ right to speak on matters of public concern and, in some circumstances, even express political beliefs.  Although the government can impose some restrictions, employees keep many of their core rights and others are protected by statute.

The Whistleblower Protection Act (WPA) and Whistleblower Protection Enhancement Act (WPEA) also protect the speech of government employees.  These laws contain broad protections for a wide range of speech, including disclosures of violations of law, rules, or regulations; gross mismanagement; abuse of authority; and many others.  Under the WPEA, there is almost always a method for employees to make disclosures to other employees, the U.S. Office of Special Counsel, or even the public and media.  Beyond the WPEA, there are other whistleblower protection laws related to specific topics like workplace safety, discrimination, and corruption.

Despite these protections, the government may place certain restrictions on employees’ speech.  Agencies can limit disclosure of classified material; impose certain non-disclosure agreements; and may restrict some speech made in the course of their duties.  The Supreme Court has also upheld similar restrictions.

Federal employees are protected from retaliation under the First Amendment and the WPEA. Employees may seek First Amendment protection directly in U.S. District Court, but must first go to the U.S. Office of Special Counsel to seek protection under the WPEA. Exercising free speech rights as a government employee can sometimes be difficult.  Employees who are considering blowing the whistle or experiencing free speech retaliation may wish to seek guidance about what method of disclosure they should take and how to protect themselves.  To discuss your possible whistleblower or retaliation case, contact Kator, Parks, Weiser & Harris, PLLC.

In recent years, federal employees have become more familiar with their rights under the Whistleblower Protection Act and their ability to file complaints with the U.S. Office of Special Counsel.   Despite this heightened awareness of federal whistleblower protections, many federal employees are unfamiliar with whistleblower protections under other laws.  These other provisions, like those under the Occupational Safety & Health Act and Consumer Financial Protection Act (Dodd-Frank), provide for additional protections, procedures, and remedies for federal employees that they may not have elsewhere.

The Occupational Safety and Health Administration (OSHA) has been given the authority to receive complaints under 22 different whistleblower retaliation provisions.  Some of these statutes prohibit retaliation against federal employees who make disclosures under a given act.  They also provide for administrative remedies that may be different than which can be obtained from the Office of Special Counsel.

The additional protections may duplicate administrative procedures and remedies for federal whistleblowers.  Because of this, federal employees often have to choose whether to file a complaint under the Whistleblower Protection Act with the Office of Special Counsel, seek protection under one of the alternatives, or both. In addition, different deadlines apply to the different statutes, and can be quite confusing.  For this reason, we encourage federal employees who may have whistleblower claims to consult with an experienced attorney as soon as possible.  The following websites have additional information about whistleblower protection laws and applicable deadlines:

Consumer Financial Protection Bureau
Department of Labor

To discuss your possible whistleblower retaliation case, contact Kator, Parks, Weiser & Harris.