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Congress Wants To Close Loopholes In Whistleblower Law

Welcome news. But always get legal advice before going to investigators.

Federal employees have strong protections and even monetary incentives for alerting government authorities to illegal behavior. But retaliation can be subtle and sneaky, and whistleblower laws may not apply to all disclosures or to employees who participated in breaking the law before blowing the whistle.

Congressional leaders want to expand protections for federal whistleblowers. House bill HR 657 (“Follow the Rules Act”) would enhance the Whistleblower Protection Act. Namely, it would encourage and protect reporting of situations in which employees are ordered to violate the law or violate agency rules and regulations.

The Trump Administration is sending promising signals

The Whistleblower Protection Act (WPA) was enacted in 1989 to shield employees of the federal government from retaliation for disclosing fraud or other illegal behavior. The Whistleblower Protection Enhancement Act of 2012 (WPEA) extended protection to federal employees in the intelligence community and others with security clearance. The thrust of the WPEA was to protect classified information by prohibiting retaliation against employees who reported waste, fraud, and abuse of power.

The new Congressional proposal would clarify and enhance whistleblower protections. In the past, a loophole in the law (and subsequent court rulings) negated protections for employees who had engaged in or covered up illegal activity – even when they had been coerced into breaking the law. The Follow the Rules Act would prohibit retaliatory action against whistleblowers who refused to violate rules or regulations, where the existing law only protects those who were ordered to violate a federal law.

President Trump recently signed an executive order specifically aimed at uncovering fraud and “deviation from the mission” in the Department of Veterans Affairs. These are welcome indications of support for would-be whistleblowers, though employees must always be cautious when deciding to report illegal behavior.

Even if the law is strengthened, whistleblowing requires consultation and planning

Whistleblower laws in theory are different from whistleblower laws when applied in actual circumstances. “Doing the right thing” in the wrong way could have adverse consequences, especially if you simply walk in and pour out your story. You could experience backlash in the form of reassignment or a hostile work environment. You might lose your security clearance. You could stall your career or be blacklisted from certain positions or agencies. You may even find yourself facing criminal prosecution or civil lawsuits.

Which is not to discourage whistleblowing. But before coming forward, you need the counsel of an attorney who is thoroughly versed in the WPA, WPEA and other applicable protections. Your counsel should also be familiar with the policies and procedures of the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) if you have experienced (or anticipate) retaliatory harassment, transfer, suspension or termination.

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