On Friday, September 28, 2012, the House of Representatives passed the Whistleblower Protection Enhancement Act of 2012 (S. 743), a bill that strengthens whistleblower protections for federal employees. Currently, federal employees may bring whistleblower claims under the Whistleblower Protection Act (WPA). According to the Senate Report (pdf) accompanying S. 743, a number of decisions issued in recent years by the United States Court of Appeals for the Federal Circuit have weakened federal whistleblower protections by, among other things, narrowing the definition of the types of disclosures covered by the WPA, and limiting the remedies available to certain federal employees. To this end, the legislation seeks to accomplish the following:
- Provide For a Broad Interpretation of “Any Disclosure” Subject to Protection. As the law currently stands, in order to assert a claim under the WPA, the covered federal employee must allege that a personnel action was taken, or threatened, because of ‘‘any disclosure’’ of information by the individual that he or she believes evidences: (1) a violation of any law, rule, or regulation; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health or safety. The Whistleblower Protection Enhancement Act of 2012 would clarify the broad meaning of ‘‘any disclosure” of wrongdoing that a covered employee could make with legal protection, and overturn a number of court decisions that narrowed the scope of what constitutes protected disclosures. For example, the bill explains that a whistleblower would not lose protection if the disclosure was made to an individual, including a supervisor, who participated in the wrongdoing; revealed information that had been previously disclosed; was not made in writing; or was made while the employee was off duty. In addition, the employee would still be protected even if the disclosure was made in the ordinary course of the employee’s duties, so long as it could be proven that he or she was retaliated against on account of the disclosure. Finally, the bill states that the amount of time elapsed since the occurrence of the events described in the disclosure would not affect the disclosure’s protected status.
- Codifies an Objective Reasonable Belief Test. The bill reaffirms that in order to establish a whistleblower claim, a federal employee must show that he or she reasonably believes that the disclosed information is evidence of a violation of a law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. The agency would be able to prevail if it could show that it would have taken the same adverse action against the employee regardless of the disclosure.
- Temporarily Expands Where Federal Whistleblower Appeals Can Be Filed. For a two-year period, a whistleblower may appeal a decision in his or her case to any federal court of appeals, not just to the U.S. Court of Appeals for the Federal Circuit.
- Anti-Gag Provisions. The bill would require every nondisclosure policy, form, or agreement of the U.S. Government to contain specific language informing employees of their rights.
- Expand Protections to TSA Employees. The bill would provide whistleblower and other employee protections to employees of the Transportation Security Administration (TSA).
The Senate approved a slightly different version of this bill in May. Notably, the Senate bill would have afforded federal whistleblowers the right to a jury trial for a 5-year period, and extended whistleblower protections to employees who work for Intelligence agencies. The Senate is expected to take up the amended bill when that chamber reconvenes after the November elections.
While this law is applicable to federal employees only, it is evidence of a growing trend of enhancing employee whistleblower protections. In August, the Department of Justice (DOJ) announced the creation of a new position of Whistleblower Ombudsperson within the DOJ’s Office of the Inspector General (OIG). The Ombudsperson is tasked with, among other things, training and educating employees about whistleblower protections. The same month, a bill was introduced in the House that would extend whistleblower protections to employees who provide information to the DOJ regarding criminal antitrust violations. Most recently, in September House lawmakers introduced two bills designed to expand and strengthen whistleblower protections in the private sector. More legislative and regulatory efforts to strengthen employee whistleblower protections are expected.