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News from Congress: New Law on Whistleblowing to Congress

News from Congress:  In late December 2019, Congress passed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, Pub.L. 116-92. The NDAA contained new amendments to whistleblower protection laws for those who blow the whistle to Congress.

Title LVII, Section 5721 of the NDAA created a new 5 U.S.C. § 2302(b)(8)(C), which expands the scope of whistleblowing covered by the Whistleblower Protection Act (WPA) to certain categories of whistleblowing to Congress (including Congressional committees). Enactment of Section 5721 gives whistleblowers disclosing information to Congress the protection of the WPA's remedial mechanisms. Prior to the passage of Section 5721, such whistleblowers either lacked whistleblower reprisal protection, or else were excluded from WPA protection and had to raise whistleblower reprisal claims instead under PPD-19 or 50 U.S.C. §§ 3234, 3341(j).

Two categories of protected disclosures receive WPA coverage under Section 5721. First, the WPA now covers disclosures to Congress (including Congressional committees) of nonclassified information, even if such disclosures would be otherwise prohibited by law or by Executive order, in the interest of national defense or the conduct of foreign affairs. Second, the WPA now covers disclosures to Congress (including Congressional committees) of classified information, if the information was classified by the heads of non-Intelligence Community agencies and if the disclosure does not reveal intelligence sources or methods. Section 5721 applies to disclosures made to Congress by both federal employees and job applicants.

Please note that Section 5721 amends WPA coverage for whistleblower reprisal remedies. It does not modify the requirements for disclosure of classified information, which are discussed below under preexisting law.

If you believe that you have suffered whistleblower reprisal, please feel free to contact Passman & Kaplan to request an initial consultation.

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