Whistleblower Protections Under Federal Law: An Overview

Congressional research reportSep 13, 2012

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Whistleblower Protections Under Federal

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September 13, 2012

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R42727

CRS Report for Congress

Prepared for Members and Committees of Congress

Whistleblower Protections Under Federal Law: An Overview

Summary

Legal protections for employees who report illegal misconduct by their employers have increased

dramatically since the late 1970s when such protections were first adopted for federal employees

in the Civil Service Reform Act of 1978. Since that time, with the enactment of the

Whistleblower Protection Act of 1989, Congress has expanded such protections for federal

employees. Congress has also established whistleblower protections for individuals in certain

private-sector employment through the adoption of whistleblower provisions in at least 18 federal

statutes. Among these statutes are the Sarbanes-Oxley Act, the FDA Food Safety Modernization

Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

In general, claims for relief under the 18 federal statutes follow a similar pattern. Complaints are

typically filed with the Secretary of Labor, and an investigation is conducted. Following the

investigation, an order is issued by the Secretary, and a party aggrieved by the order is generally

permitted to appeal the Secretary’s order to a federal court. However, because 18 different statutes

are involved in prescribing whistleblower protections, some notable differences exist. For

example, under the Department of Defense Authorization Act of 1987, individuals employed by

defense contractors who engage in whistleblowing activities file complaints with the Inspector

General rather than the Secretary of Labor. Under some of the statutes, including the Commercial

Motor Vehicle Safety Act and the Dodd-Frank Act, the Secretary’s preliminary order will become

a final order if no objections are filed within a prescribed time period.

This report provides an overview of key aspects of the 18 selected federal statutes applicable to

individuals in certain private-sector industries. It focuses on the protections provided to

employees who believe they have been subject to retaliation, rather than on how or where alleged

misconduct should be disclosed. In addition, the report also includes an overview of the

Whistleblower Protection Act. While state law may also provide whistleblower protections for

employees, this report focuses only on the aforementioned federal statutory provisions.

Congressional Research Service

Whistleblower Protections Under Federal Law: An Overview

Contents

Clean Air Act (CAA) ....................................................................................................................... 1

Commercial Motor Vehicle Safety Act (CMVSA) .......................................................................... 2

Comprehensive Environmental Response Compensation and Liability Act of 1980

(CERCLA).................................................................................................................................... 3

Department of Defense Authorization Act of 1987 ......................................................................... 4

Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) ........................ 4

Energy Reorganization Act of 1974 (ERA) ..................................................................................... 6

Fair Labor Standards Act of 1938 (FLSA) ...................................................................................... 7

FDA Food Safety Modernization Act (FDA Modernization Act).................................................... 8

Federal Mine Safety and Health Act (FMSHA) .............................................................................. 8

Federal Water Pollution Control Act of 1972 (FWPCA) ................................................................. 9

Longshore and Harbor Workers’ Compensation Act (LHWCA) ................................................... 10

Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) ....................................... 10

Occupational Safety and Health Act of 1970 (OSH Act).............................................................. 11

Safe Drinking Water Act (SDWA) ................................................................................................. 11

Sarbanes-Oxley Act of 2002 (SOX) .............................................................................................. 12

Solid Waste Disposal Act (SWDA) ............................................................................................... 12

Surface Mining Control and Reclamation Act (SMCRA) ............................................................. 13

Toxic Substances Control Act (TSCA) .......................................................................................... 14

Whistleblower Protection Act (WPA)............................................................................................ 15

Covered Employees................................................................................................................. 15

Protected Disclosures .............................................................................................................. 16

Personnel Actions .................................................................................................................... 16

Forums Where Whistleblower Protections May Be Raised .................................................... 17

Employee Appeals to the MSPB Under Chapter 77.......................................................... 17

Actions by the Office of Special Counsel (OSC).............................................................. 18

Individual Right of Action (IRA) ...................................................................................... 21

Contacts

Author Contact Information........................................................................................................... 22

Congressional Research Service

Whistleblower Protections Under Federal Law: An Overview

egal protections for employees who report illegal misconduct by their employers have

increased dramatically since the late 1970s when such protections were first adopted for

federal employees in the Civil Service Reform Act of 1978. Since that time, with the

enactment of the Whistleblower Protection Act of 1989, as amended, Congress has expanded

such protections for federal employees. Congress has also established whistleblower protections

for individuals in certain private-sector employment through the adoption of whistleblower

provisions in at least 18 other industry-specific federal statutes. For example, in 2002, Congress

passed the Sarbanes-Oxley Act (SOX) in response to corporate scandals that occurred in the late

1990s and early 2000s. SOX established new civil protections for employees who report concerns

about alleged fraud upon shareholders. More recently, Congress passed the FDA Food Safety

Modernization Act (FDA Modernization Act), which prohibits entities engaged in food

manufacturing, processing, and related activities from discharging or otherwise discriminating

against an employee for providing information related to any violation or act that the employee

reasonably believes to be a violation of the Federal Food, Drug, and Cosmetic Act.1

This report provides an overview of whistleblower provisions in 19 selected federal statutes.

While state law may also provide whistleblower protections for employees, this report focuses on

relevant federal statutory provisions. The report does not discuss the qui tam and whistleblower

provisions of the False Claims Act that permit private citizens with knowledge of fraud against

the federal government to sue on its behalf and receive a portion of the recovered proceeds. For

discussion of the False Claims Act, see CRS Report R40785, Qui Tam: The False Claims Act and

Related Federal Statutes, by (name redacted).

Clean Air Act (CAA)

The CAA prohibits an employer from discharging or otherwise discriminating against any

employee with respect to his or her compensation, terms, conditions, or privileges of employment

because the employee (1) commenced or is about to commence a proceeding under the CAA or a

proceeding for the administration or enforcement of any requirement imposed by the CAA; (2)

testified or is about to testify in any such proceeding; or (3) assisted or participated or is about to

assist or participate in any manner in such a proceeding.2 Any employee who believes that he or

she has been discharged or otherwise discriminated against in violation of the CAA may, within

30 days after such violation occurs, file a complaint with the Secretary of Labor. Upon receipt of

the complaint, the Secretary will conduct an investigation and within 30 days of the receipt of

such complaint, shall notify the complainant and the alleged violator with the results of the

investigation. Within 90 days of receipt of the complaint, the Secretary shall issue an order either

providing relief or denying the complaint. If the Secretary determines that a violation has

occurred, the Secretary will order the person who committed such violation to (1) take affirmative

action to abate the violation, and (2) reinstate the complainant to his or her former position with

compensation, including back pay, terms, conditions, and privileges of employment. The

Secretary may order the payment of compensatory damages to the complainant. If an order is

issued, at the request of the complainant, the Secretary will assess against the person against

whom the order is issued a sum equal to the aggregate amount of all costs and expenses,

P.L. 111-353, 124 Stat. 3885.

42 U.S.C. § 7622(a).

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Whistleblower Protections Under Federal Law: An Overview

including attorneys’ and expert witness fees, reasonably incurred by the complainant in bringing

the complaint.3

Any person adversely affected or aggrieved by an order issued under the CAA’s whistleblower

provisions may obtain review of the order in the U.S. court of appeals for the circuit in which the

violation allegedly occurred. The petition for review must be filed within 60 days from the

issuance of the Secretary’s order, and the commencement of proceedings shall not, unless ordered

by the court, operate as a stay of the Secretary’s order. An order by the Secretary is not subject to

judicial review in any criminal or other civil proceeding. When a person has failed to comply

with an order, the Secretary may file a civil action in the U.S. district court in which the violation

occurred and the district courts shall have

jurisdiction to grant all appropriate relief,

The Secretary may file a civil action in the U.S. district

including injunctive relief, as well as

court in which the violation occurred when a person has

compensatory and exemplary damages.4 Any

failed to comply with an order.

person on whose behalf an order was issued

may commence a civil action against the person to whom such order was issued to require

compliance, and the appropriate U.S. district court shall have jurisdiction, without regard to the

amount in controversy or citizenship of the parties. In issuing any final order, the court may

award costs of litigation, including reasonable attorney and expert witness fees, to any party

whenever the court determines it is appropriate.5

Commercial Motor Vehicle Safety Act (CMVSA)

The CMVSA prohibits employers from discharging, disciplining, or discriminating against an

employee regarding pay, terms, or privileges of employment because the employee filed a

complaint or instituted a proceeding related to a violation of a commercial motor vehicle safety

regulation, standard, or order, or has testified or will testify in such proceeding. Additionally, any

employee who refuses to operate a vehicle because the operation violates a regulation, standard,

or order related to commercial motor vehicle safety or health, or has a reasonable apprehension of

serious injury because of the vehicle’s unsafe condition, is likewise protected from such

retaliatory action.6

An employee alleging discharge, discipline, or discrimination in violation of the CMVSA may

file a complaint with the Secretary of Labor within 180 days after the alleged violation occurred.

Within 60 days of receiving the complaint, the Secretary will conduct an investigation, decide

whether the complaint has merit, and notify the complainant and the person alleged to have

committed the violation of the findings. If the Secretary determines that it is reasonable to believe

that the violation occurred, the Secretary will include in the findings a preliminary order for

relief. Within 30 days of receiving notice of the Secretary’s findings, the complainant and person

alleged to have committed the violation may file objections to the findings or preliminary order

and request a hearing on the record, although the filing of objections does not stay a reinstatement

ordered in the preliminary order. If a hearing is not requested within 30 days, the preliminary

42 U.S.C. § 7622(b).

42 U.S.C. § 7622(d).

42 U.S.C. § 7622(e).

49 U.S.C. § 31105(a).

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Whistleblower Protections Under Federal Law: An Overview

order is final and not subject to judicial review. A hearing shall be conducted expeditiously, and

not later than 120 days after the end of the hearing, the Secretary will issue a final order. Before

the final order is issued, the proceeding may be ended by settlement agreement by the Secretary,

the complainant, and the person alleged to have committed the violation. If the Secretary

determines that a violation of this provision occurred, he or she can order the person alleged to

have committed the violation to (1) take affirmative action to abate the violation; (2) reinstate the

complainant to the former position with the same pay and terms and privileges of employment;

and (3) pay compensatory damages, including back pay. Upon request by the complainant, the

Secretary may assess against the person against whom the order is issued the costs, including

attorneys’ fees, reasonably incurred by the complainant in bringing the complaint.7

Within 60 days after an order is issued, a person adversely affected may file a petition for review

in the U.S. court of appeals for the circuit in which the violation occurred or the person resided on

the date of the violation. The review will be heard and decided expeditiously and an order is not

subject to judicial review in a criminal or other civil proceeding. If a person fails to comply with

an order issued under this provision, the Secretary will bring a civil action to enforce the order in

the U.S. district court for the judicial district in which the violation occurred.8

Comprehensive Environmental Response

Compensation and Liability Act of 1980 (CERCLA)

CERCLA, also known as the “Superfund” Act, prohibits an employer from firing or in any other

way discriminating against, or causing to be fired or discriminated against, any employee because

that employee provided information to a state or the federal government; filed, instituted, or

caused to be filed or instituted any proceeding under the statute; or has testified or will testify in a

proceeding resulting from the administration or enforcement of the statute.9 Any employee who

believes that he or she has been terminated or otherwise discriminated against by any person in

violation of CERCLA’s whistleblower provisions may, within 30 days, apply to the Secretary of

Labor for a review of the termination or alleged discrimination. Upon receipt of such application,

the Secretary will institute an investigation and upon receiving the investigation report, make

findings of fact. If the Secretary finds that a violation occurred, she will issue a decision,

incorporating an order, requiring the party committing the violation to take such affirmative

action to abate the violation as the Secretary deems appropriate, including reinstatement to the

former position with compensation. If she finds no violation, the Secretary will issue an order

denying the application. An order issued by the Secretary is subject to judicial review.10 When an

order is issued under this provision, at the request of the applicant, a sum equal to the aggregate

amount of all costs and expenses, including attorneys’ fees, will be assessed against the person

committing such violation.11

49 U.S.C. § 31105(b).

49 U.S.C. § 31105(c), (d).

42 U.S.C. § 9610(a).

42 U.S.C. § 9610(b).

42 U.S.C. § 9610(c).

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Whistleblower Protections Under Federal Law: An Overview

Department of Defense Authorization Act of 1987

The Department of Defense Authorization Act of 1987 prohibits defense contractors from

discharging, demoting, or otherwise discriminating against an employee as a reprisal for

disclosing to a Member of Congress, an authorized official of an agency, or the Department of

Justice information relating to a substantial violation of law related to a contract, including the

competition for or negotiation of a contract.12 Any person who believes that he or she has been

subject to a prohibited reprisal may submit a complaint to the Inspector General (IG), who is

required to investigate the complaint unless the IG determines that the complaint is frivolous.

Upon completion of the investigation, the

Defense contractor employees who engage in

IG will submit a report of the findings of

whistleblowing activities file complaints with the Inspector

the investigation to the individual, relevant

General (IG) rather than the Secretary of Labor.

contractor, and the head of the agency.13 If

the agency head determines that a

contractor has subjected a person to a prohibited reprisal, the agency head may take one or more

of the following actions: (1) order the contractor to abate the reprisal; (2) order the contractor to

reinstate the person to the position that the person held before the reprisal, together with

compensation, including back pay, employment benefits, and other applicable terms and

conditions of employment; (3) order the contractor to pay the complainant an amount equal to the

aggregate amount of all costs and expenses, including attorneys’ and expert witnesses’ fees, that

were reasonably incurred by the complainant.14 If a person fails to comply with such an order, the

agency head will file an action for enforcement in the U.S. district court for the district in which

the reprisal occurred. The court may grant appropriate relief, including injunctive relief, as well as

compensatory and exemplary damages.15 Within 60 days after the order is issued, any person

adversely affected or aggrieved by such an order may obtain review in the U.S. court of appeals

for a circuit in which the reprisal occurred.16

Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank Act)

The Dodd-Frank Act established several new whistleblower protections for individuals employed

in the financial services industry. Section 748 of the Dodd-Frank Act, for example, amended the

Commodity Exchange Act (CEA) to prohibit employers from discharging or otherwise

discriminating against an individual for providing information related to a violation of the CEA to

the Commodity Futures Trading Commission (CFTC) or for assisting in any investigation or

judicial or administrative action of the CFTC based upon or related to such information. An

individual who alleges a termination or other discrimination in violation of the CEA provisions

may bring an action in the appropriate district court of the United States. If the individual is a

federal employee, he or she must bring the action in accordance with Section 1221 of Title 5, U.S.

10 U.S.C. § 2409(a).

10 U.S.C. § 2409(b).

10 U.S.C. § 2409(c)(1).

10 U.S.C. § 2409(c)(2).

10 U.S.C. § 2409(c)(3).

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Whistleblower Protections Under Federal Law: An Overview

Code.17 An individual who prevails in a whistleblower action will be awarded reinstatement, back

pay with interest, and compensation for any special damages sustained as result of the discharge

or discrimination, including litigation costs and reasonable attorney’s fees.

Section 922 of the Dodd-Frank Act amended the Securities Exchange Act of 1934 to add a new

Section 21F that prohibits employers from discharging or otherwise discriminating against an

individual for (1) providing information related to a violation of the securities laws to the

Securities and Exchange Commission (SEC); (2) initiating, testifying in, or assisting in any

investigation or judicial or administrative

action of the SEC based upon or related to

An individual who prevails in an action under Section 21F

will be awarded two times the amount of back pay

such information; or (3) making disclosures

otherwise owed.

that are required by SOX, the Securities

Exchange Act of 1934, or any other law

subject to the SEC’s jurisdiction. An individual who alleges a termination or other discrimination

in violation of these provisions may bring an action in the appropriate district court of the United

States. An individual who prevails in a whistleblower action under Section 21F will be awarded

reinstatement, two times the amount of back pay otherwise owed to the individual, with interest,

and compensation for litigation costs, expert witness fees, and reasonable expenses.

Section 1057 of the Dodd-Frank Act prohibits employers engaged in providing consumer

financial products or services, and employers that provide a material service in connection with

the provision of such products or services, from terminating or in any other way discriminating

against a covered employee because the employee has (1) provided, caused to be provided, or is

about to provide or cause to be provided, information relating to a violation of Title X of the

Dodd-Frank Act or any other provision of law that is subject to the jurisdiction of the Bureau of

Consumer Financial Protection (Bureau) to the employer, the Bureau, or a state, local, or federal

government authority or law enforcement agency; (2) testified or will testify in any proceeding

resulting from the administration or enforcement of Title X of the Dodd-Frank Act or any other

provision of law that is subject to the jurisdiction of the Bureau; (3) filed, instituted, or caused to

be filed or instituted any proceeding under any federal consumer financial law; or (4) objected to

or refused to participate in any activity that the employee reasonably believed to be in violation of

any law subject to the jurisdiction of, or enforceable by, the Bureau.18

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the Section 1057 whistleblower provisions may file a complaint with the Secretary

of Labor within 180 days of the alleged violation. Within 60 days after receiving the complaint,

the Secretary will initiate an investigation and determine whether there is reasonable cause to

believe that the complaint has merit. The Secretary will notify the complainant and the person

alleged to have committed the violation of her determination in writing. If the Secretary

concludes that there is reasonable cause to believe that a violation has occurred, she will also

issue a preliminary order that provides relief. Either party may file objections to the Secretary’s

findings or order and request a hearing within 30 days after receiving her notification. If a hearing

is not requested in the 30-day period, the preliminary order shall be deemed a final order that is

not subject to judicial review.19

See P.L. 111-203, § 748, 124 Stat. 1376, 1739 (2010).

P.L. 111-203, § 1057(a), 124 Stat. 1376, 2031 (2010). The term “covered employee” is defined to include “any

individual performing tasks related to the offering or provision of a consumer financial product or service.”

P.L. 111-203, § 1057(c)(2)(C), 124 Stat. 1376, 2032-33 (2010).

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Whistleblower Protections Under Federal Law: An Overview

If a hearing is conducted, the Secretary is required to issue a final order providing relief or

denying the complaint within 120 days after the date of the hearing’s conclusion. If the Secretary

determines that a violation has occurred, she may order the person who committed the violation

to take affirmative action to abate the violation, order the reinstatement of the complainant to his

or her former position with compensation, including back pay, and order the payment of

compensatory damages. At the request of the complainant, the Secretary will also assess against

the person who committed the violation a sum equal to the aggregate amount of all legal costs

and expenses reasonably incurred. Any person adversely affected or aggrieved by a final order

may seek review of the order in the U.S. court of appeals for the circuit in which the violation

allegedly occurred or the circuit in which the complainant resided on the date of such violation. If

the Secretary fails to issue a timely final order, the complainant may seek de novo review in the

appropriate district court of the United States having jurisdiction.

Energy Reorganization Act of 1974 (ERA)

The ERA prohibits employers from discharging or otherwise discriminating against any employee

who (1) notified his or her employer of an alleged violation of the ERA or the Atomic Energy Act

of 1954 (AEA); (2) refused to engage in any unlawful practice under the ERA or AEA, if the

employee identified the alleged illegality to the employer; (3) testified before Congress or at any

federal or state proceeding regarding any provision of the ERA or AEA; (4) commenced a

proceeding under the ERA or AEA; (5) testified or is about to testify in any such proceeding; or

(6) assisted or participated or is about to assist or participate in a proceeding to carry out the

purposes of the ERA or AEA.20 Any employee who believes that he or she has been discharged or

otherwise discriminated against in violation of the ERA’s whistleblower provisions may, within

180 days after such violation occurs, file a complaint with the Secretary of Labor alleging such

discharge or discrimination. Upon receipt of a complaint, the Secretary will complete an

investigation within 30 days. Within 90 days of receiving the complaint, the Secretary will, unless

the proceeding is terminated due to a settlement, issue an order either providing relief or denying

the complaint. Upon the conclusion of a public hearing and the issuance of a recommended

decision that the complaint has merit, the Secretary will issue a preliminary order providing relief,

but may not order compensatory damages pending a final order.

If the Secretary determines that a violation has occurred, she will order the person who committed

such violation to (1) take affirmative action to abate the violation, and (2) reinstate the

complainant to his former position together with compensation, including back pay, terms,

conditions, and privileges of his or her employment. The Secretary may order the person who

committed the violation to provide compensatory damages to the complainant. If an order is

issued, the Secretary, at the request of the complainant, will assess a sum equal to the aggregate

amount of all costs and expenses, including attorneys’ and expert witness fees, reasonably

incurred by the complainant. The Secretary will dismiss a complaint and not conduct an

investigation unless the complainant has

The Secretary will dismiss a complaint and not conduct an

made a prima facie showing that the

investigation unless the complainant has made a prima facie

protected action by the employee was a

showing that the protected action was a contributing factor

contributing factor in the unfavorable

in the alleged unfavorable personnel action.

personnel action alleged in the complaint.

Notwithstanding a finding by the Secretary that the complainant has made the required prima

42 U.S.C. § 5851(b).

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Whistleblower Protections Under Federal Law: An Overview

facie showing, no investigation shall be conducted if the employer demonstrates, by clear and

convincing evidence, that it would have taken the same unfavorable personnel action in the

absence of such behavior. Relief may not be ordered if the employer demonstrates by clear and

convincing evidence that it would have taken the same unfavorable personnel action in the

absence of such behavior.21

Any person adversely affected by an order issued under the ERA’s whistleblower provisions may

obtain review of the order in the U.S. court of appeals for the circuit in which the violation

allegedly occurred. A petition for review must be filed within 60 days of the issuance of the

Secretary’s order. Review shall conform to chapter 7 of Title 5, U.S. Code, and the

commencement of proceedings under this provision shall not, unless ordered by the court, operate

as a stay of the Secretary’s order.

An order by the Secretary shall not be subject to judicial review in any criminal or other civil

proceeding. Whenever a person fails to comply with an order issued under this provision, the

Secretary may file a civil action in the U.S. district court for the district in which the violation

occurred. In actions brought under this provision, the district courts shall have jurisdiction to

grant all appropriate relief, including injunctive relief and compensatory and exemplary damages.

Any person on whose behalf an order was issued may commence a civil action against the person

to whom such order was issued to require compliance with such order; the appropriate U.S.

district court shall have jurisdiction, without regard to the amount in controversy or citizenship of

the parties; and in issuing any final order under this subsection, the court may award costs of

litigation, including reasonable attorney and expert witness fees.22

Fair Labor Standards Act of 1938 (FLSA)

The FLSA prohibits employers from discharging or otherwise discriminating against an employee

because such employee filed a complaint or instituted any proceeding under the statute, testified

or is about to testify in any such proceeding, or served or is about to serve on an industry

committee.23 Employers who willfully violate the FLSA’s anti-retaliation provisions may be fined

up to $10,000 and imprisoned up to six months. Employers who retaliate against employees in

violation of this provision shall be liable for legal and equitable relief, including, without

limitation, reinstatement, the payment of lost wages, and an additional equal amount as liquidated

damages. An action may be maintained against any employer, including a public agency, in any

federal or state court of competent jurisdiction by any one or more employees. The court shall, in

addition to any judgment awarded, allow

reasonable attorneys’ fees to be paid to the

Willful violations of the FLSA’s anti-retaliation provisions

plaintiff, as well as the costs of the action. An

could result in fines up to $10,000 and imprisonment up

employee loses his or her right to file a

to six months.

complaint under this provision once the

Secretary of Labor files a complaint against the employer.24

Id.

42 U.S.C. § 5851(c).

29 U.S.C. § 215(a)(3).

29 U.S.C. § 216(b).

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Whistleblower Protections Under Federal Law: An Overview

FDA Food Safety Modernization Act (FDA

Modernization Act)

The FDA Modernization Act amended the Federal Food, Drug, and Cosmetic Act to prohibit an

entity engaged in the manufacture, processing, packing, transporting, distribution, reception,

holding, or importation of food from discharging or otherwise discriminating against an employee

with respect to the individual’s compensation, terms, conditions, or privileges of employment

because the employee (1) provided, caused to be provided, or is about to provide or cause to be

provided information relating to a violation of the Federal Food, Drug, and Cosmetic Act to the

employer, the federal government, or the attorney general of a state; (2) testified or is about to

testify in a proceeding concerning the violation; (3) assisted or participated or is about to assist or

participate in a proceeding concerning the violation; or (4) objected to, or refused to participate in

any activity that the employee believed to be in violation of the Federal Food, Drug, and

Cosmetic Act.25

An individual who believes that he or she has been discharged or otherwise discriminated against

in violation of the relevant whistleblower provisions may file a complaint with the Secretary of

Labor within 180 days after the date on which the violation occurs.26 Within 60 days of receiving

the complaint, the Secretary will initiate an investigation and determine whether there is

reasonable cause to believe that the complaint has merit. If the Secretary determines that

reasonable cause exists, she will accompany her findings with a preliminary order that requires

the person who committed the violation to take affirmative action to abate the violation, to

reinstate the complainant to his or her former position with compensation, and to provide

compensatory damages. The person alleged to have committed the violation or the complainant

may file objections to the findings or the preliminary order and request a hearing. A final order

must be issued by the Secretary within 120 days after the date of the hearing’s conclusion. If the

Secretary fails to issue a timely final decision, the complainant may seek de novo review in the

appropriate district court of the United States with jurisdiction

Federal Mine Safety and Health Act (FMSHA)

The FMSHA prohibits an employer from discharging an employee or applicant for employment

because the individual (1) filed or made a complaint under or related to the FMSHA; (2) is the

subject of medical evaluations and potential transfer; (3) instituted or testified in any proceeding

under or related to the FMSHA; or (4) exercised any statutory right afforded by the FMSHA.27

Employees and applicants who believe that they have been discharged, interfered with, or

otherwise discriminated against in violation of this prohibition may file a complaint with the

Secretary of Labor within 60 days after the alleged violation. Upon receipt of the complaint, the

Secretary will forward a copy to the respondent and within 15 days of receiving the complaint,

the Secretary will institute an investigation as she deems appropriate. If the Secretary determines

that the complaint was not brought frivolously, the Federal Mine Safety and Health Review

Commission will order the immediate reinstatement of the miner pending a final order. If the

21 U.S.C. § 1012(a).

21 U.S.C. § 1012(b)(1).

30 U.S.C. § 815(c)(1).

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Secretary determines that the FMSHA’s whistleblower provisions have been violated, she will

immediately file a complaint with the

Commission, with service upon the alleged

If the Secretary determines that the complaint was not

brought frivolously, the Federal Mine Safety and Health

violator and miner, proposing an order

Review Commission will order the immediate reinstatement

granting appropriate relief. The

of the miner pending final order.

Commission shall afford an opportunity for

a hearing and shall issue an order affirming,

modifying, or vacating the Secretary’s proposed order, or directing other appropriate relief. The

Commission retains the authority to require a person committing a violation to abate the violation

as the Commission deems appropriate, including the rehiring or reinstatement of the miner to his

or her former position with back pay and interest.28

Within 90 days of receiving a complaint, the Secretary will notify the miner about whether a

violation occurred. If the Secretary determines that the FMSHA’s whistleblower provisions were

violated, the complainant shall have the right to file an action in his or her own behalf before the

Commission. The Commission shall afford an opportunity for a hearing and shall issue an order,

granting such relief as it deems appropriate. Whenever an order is issued sustaining a

complainant’s charges, a sum equal to the aggregate amount of all costs and expenses, including

attorneys’ fees, will be assessed against the person who committed the violation. Any person

adversely affected by such an order may obtain review in any U.S. court of appeals for the circuit

in which the violation is alleged to have occurred or in the U.S. Court of Appeals for the D.C.

Circuit.29

Federal Water Pollution Control Act of 1972

(FWPCA)

The FWPCA prohibits an employer from firing or otherwise discriminating against an employee,

or causing such firing or discrimination, because the employee has filed, instituted, or caused to

be filed or instituted any proceeding under the FWPCA, or has testified or is about to testify in

any proceeding resulting from the administration or enforcement of the FWPCA.30 Any employee

who believes that he or she has been fired or discriminated against in violation of this provision

may, within 30 days after such alleged violation occurs, apply to the Secretary of Labor for a

review. Upon receipt of such application, the Secretary will institute an investigation as he or she

deems appropriate. Upon receiving the report of such investigation, the Secretary will make

findings of fact; if she finds that such violation did occur, the Secretary will issue a decision,

incorporating an order and findings, requiring the party committing such violation to take such

affirmative action to abate the violation, including the rehiring or reinstatement of the employee

with compensation. If the Secretary finds that there was no such violation, she will issue an order

denying the application; such order shall be subject to judicial review in the same manner as

orders and decisions are subject to judicial review under 33 U.S.C. §§ 1251 et seq. Whenever an

order is issued, at the request of the applicant, a sum equal to the aggregate amount of all costs

and expenses, including attorneys’ fees, determined to have been reasonably incurred by the

applicant, will be assessed against the person committing the violation.

30 U.S.C. § 815(c)(2).

30 U.S.C. § 816.

33 U.S.C. § 1367(a).

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Longshore and Harbor Workers’ Compensation Act

(LHWCA)

The LHWCA prohibits an employer from discharging or otherwise discriminating against an

employee who claims or attempts to claim compensation from the employer, or testifies or is

about to testify against the employer in a proceeding under the statute. Any employer who

violates this provision will be liable for a penalty of not less than $1,000 nor more than $5,000. If

such penalties are not paid, they may be recovered in a civil action brought in the appropriate

U.S. district court. Any employee that is

discriminated against under the statute’s

If the employee ceases to be qualified to perform

whistleblower provisions shall be restored to his

the duties of employment, the employee will not be

or her employment and shall be compensated for

restored to his or her position and will not be

compensated for any wage loss.

any loss of wages arising from the

discrimination, provided that if the employee

ceases to be qualified to perform the duties of employment, he or she shall not be entitled to such

restoration and compensation. The employer and not his insurance carrier shall be liable for such

penalties and payments, and any provision in an insurance policy undertaking to relieve the

employer from the liability for such penalties and payments shall be void.31

Migrant and Seasonal Agricultural Worker

Protection Act (MSAWPA)

The MSAWPA prohibits employers from intimidating, threatening, restraining, coercing,

blacklisting, discharging, or in any manner discriminating against any migrant or seasonal

agricultural worker because such worker has, with just cause, filed a complaint or instituted, or

caused to be instituted, any proceeding under the statute’s anti-retaliation provisions.

Additionally, any employee who has testified or is about to testify in any such proceeding or

justifiably exercises any right or protection afforded by MSAWPA is protected from retaliatory

action.32 An employee who believes, with just cause, that he or she has been discriminated against

in violation of the relevant provisions may file a complaint with the Secretary of Labor within

180 days of the violation. As she deems appropriate, the Secretary will institute an investigation

and, upon determining that a violation has occurred, will bring an action in any appropriate U.S.

district court. In any such action, the U.S. district court will have jurisdiction, for cause shown, to

restrain the violation and order all appropriate relief, including reinstatement with back pay or

damages.33

33 U.S.C. § 948a.

29 U.S.C. § 1855(a).

29 U.S.C. § 1855(b).

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Occupational Safety and Health Act of 1970

(OSH Act)

The OSH Act prohibits employers from discharging or in any manner discriminating against an

employee because such employee filed a complaint or instituted or caused to be instituted a

proceeding under the OSH Act, or is about to testify in any such proceeding. Additionally, any

employee who has testified or is about to testify in any such proceeding or exercises any right or

protection afforded by the OSH Act is protected from retaliatory action. An employee who

believes that he or she has been discharged or otherwise discriminated against in violation of the

OSH Act may file a complaint with the Secretary of Labor alleging such discrimination within 30

days. Upon receipt of such complaint, the Secretary will institute an investigation as she deems

appropriate. If the Secretary determines that a violation has occurred, she will bring an action in

any appropriate U.S. district court. The U.S. district court shall have jurisdiction, for cause

shown, to restrain the violation and order all appropriate relief including reinstatement with back

pay.34

Safe Drinking Water Act (SDWA)

The SDWA prohibits employers from firing, or in any other way discriminating against, or

causing to be fired or discriminated against, any employee because such employee filed,

instituted, or caused to be filed or instituted any proceeding under the SDWA or has testified or is

about to testify in any proceeding resulting from the administration or enforcement of the SDWA.

Any employee who believes that he or she has been fired or otherwise discriminated against in

violation of the SDWA may, within 30 days after such alleged violation occurs, apply to the

Secretary of Labor for a review. Upon receipt of such application, the Secretary will initiate an

investigation as she deems appropriate. Upon receiving the report of such investigation, the

Secretary will make findings of fact; if she finds that such violation did occur, the Secretary will

issue a decision, incorporating an order and findings, requiring the party committing such

violation to take such affirmative action to abate the violation, including the rehiring or

reinstatement of the employee with compensation. If the Secretary finds that there was no such

violation, she will issue an order denying the application; such order is subject to judicial review

in the same manner as orders and decisions are subject to judicial review under 42 U.S.C. §§

6901 et seq. Whenever an order is issued, at the request of the applicant, a sum equal to the

aggregate amount of all costs and expenses, including attorneys’ fees, determined to have been

reasonably incurred by the applicant shall be assessed against the person who committed the

violation.35

Any employee or employer adversely affected or aggrieved by an order may obtain review of the

order in the U.S. court of appeals for the circuit in which the violation allegedly occurred. Within

60 days of the issuance of the order, the petition for review must be filed and review shall

conform to 5 U.S.C. §§ 701 et seq. An order of the Secretary shall not be subject to judicial

review in any criminal or other civil proceeding. Whenever a person has failed to comply with an

order, the Secretary will file a civil action in the U.S. district court for the district in which the

29 U.S.C. § 660(c).

42 U.S.C. § 300j-9(i)(1),(2).

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violation occurred. In actions brought under the SDWA’s whistleblower provisions, the district

courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and

compensatory and exemplary damages.36

Sarbanes-Oxley Act of 2002 (SOX)

SOX prohibits publicly traded companies, including any subsidiaries or affiliates whose financial

information is included in the consolidated financial statements of such companies, and nationally

recognized statistical rating organizations from discharging, demoting, suspending, threatening,

harassing, or in any other manner discriminating against an employee because such employee

provided information, caused information to be provided, otherwise assisted in an investigation,

or filed, testified, or participated in a proceeding regarding any conduct that the employee

reasonably believes is a violation of SOX, any SEC rule or regulation, or any federal statute

relating to fraud against shareholders, when the information or assistance is provided to a federal

regulatory or law enforcement agency, any Member or committee of Congress, or a person with

supervisory authority over the employee or investigative authority for the employer, regarding

any violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 ( bank fraud), 1348

(securities fraud against shareholders), or any SEC rule or regulation, or of any federal law

regarding fraud against shareholders.37 Any employee who alleges such wrongful discharge or

other discrimination may file a complaint with the Secretary of Labor, using procedures set forth

in 49 U.S.C. § 42121(b). In the absence of delay resulting from an employee’s bad faith, the

employee may seek de novo review in the appropriate U.S. district court, if the Secretary of Labor

does not issue a final decision within 180 days. An action must be commenced within 180 days

after the date on which the violation occurs.38

A prevailing employee may be awarded all relief necessary to make the individual whole,

including reinstatement with pre-discrimination seniority status, back pay with interest, and

compensation for any special damages incurred as a result of the discrimination, including

litigation costs, expert witness fees, and

reasonable attorneys fees, and to leave

An employee prevailing in a whistleblower action may be

the employee with all rights, privileges,

awarded all relief necessary to make the individual whole.

or remedies under federal or state law

or any collective bargaining agreement.39

Solid Waste Disposal Act (SWDA)

The SWDA prohibits employers from firing, or in any other way discriminating against, or

causing to be fired or discriminated against, any employee because such employee filed,

instituted, or caused to be filed or instituted any proceeding under the SWDA, or has testified or

is about to testify in any proceeding resulting from the administration or enforcement of the

42 U.S.C. § 300j-9(i)(3),(4).

18 U.S.C. § 1514A(a).

18 U.S.C. § 1514A(b)(2)(D).

18 U.S.C. § 1514A(c), (d).

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SWDA.40 Any employee who believes that he or she has been fired or otherwise discriminated

against in violation of the SWDA’s whistleblower provisions may, within 30 days after such

alleged violation occurs, apply to the Secretary of Labor for a review. Upon receipt of such

application, the Secretary will institute an investigation as she deems appropriate. Following the

receipt of the investigation report, the Secretary will make findings of fact; if she finds that a

violation did occur, the Secretary will issue a decision, incorporating an order and findings,

requiring the party committing such violation to take such affirmative action to abate the

violation, including the rehiring or reinstatement of the employee with compensation. If the

Secretary finds no violation, she will issue an order denying the application; such order shall be

subject to judicial review in the same manner as orders and decisions are subject to judicial

review under 42 U.S.C. §§ 6901 et seq.41 Whenever an order is issued, at the request of the

applicant, a sum equal to the aggregate amount of all costs and expenses, including attorneys’

fees, to have been reasonably incurred by the applicant, will be assessed against the person who

committed the violation.42

Surface Mining Control and Reclamation Act

(SMCRA)

The SMCRA prohibits employers from discharging or in any other way discriminating against or

causing to be fired or discriminated against any employee because such employee has filed,

instituted, or caused to be filed or instituted any proceeding under this provision. Additionally,

any employee who has testified or is about to testify in any such proceedings is protected from

such retaliatory action.43 An employee who believes that he or she has been fired or otherwise

discriminated against in violation of the SMCRA’s whistleblower provisions may, within 30 days,

apply to the Secretary of Labor for a review of such firing or alleged discrimination. Upon receipt

of such complaint, the Secretary will initiate an investigation as she deems appropriate. If the

Secretary determines that a violation occurred, she will issue a decision incorporating the findings

of fact and an order requiring the party committing the violation to take such affirmative action to

abate the violation as the Secretary deems appropriate, including the rehiring or reinstatement of

the employee with compensation. If the Secretary finds that no violation occurred, she shall issue

a finding. Orders issued by the Secretary shall be subject to judicial review in the same manner as

other orders and decisions of the Secretary are subject to judicial review under the SMCRA.44

Whenever an order is issued to abate a violation, at the request of the applicant, a sum equal to

the aggregate amount of all costs and expenses, including attorney’s fees, determined to have

been reasonably incurred by the applicant in connection with the institution and prosecution of

such proceedings, shall be assessed against the person who committed the violation.45

42 U.S.C. § 6971(a).

42 U.S.C. § 6971(b).

42 U.S.C. § 6971(c).

30 U.S.C. § 1293(a).

30 U.S.C. § 1293(b).

30 U.S.C. §1293(c).

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Toxic Substances Control Act (TSCA)

The TSCA prohibits employers from discharging or otherwise discriminating against any

employee with respect to compensation, terms, conditions, or privileges of employment because

the employee has (1) commenced, caused to be commenced, or is about to commence or cause to

be commenced a proceeding under the TSCA; (2) testified or is about to testify in any such

proceeding; or (3) assisted or participated or is about to assist or participate in such a proceeding

or in any other action to carry out the purposes of the TSCA. Any employee who believes that

he or she has been discharged or otherwise discriminated against by any person in violation of the

TSCA’s whistleblower provisions may, within 30 days after such alleged violation occurs, file a

complaint with the Secretary of Labor. Upon receipt of such a complaint, the Secretary will

conduct an investigation and within 30 days of the receipt of such complaint, the Secretary will

complete such investigation. Within 90 days of receiving the complaint, the Secretary will, unless

the proceeding is terminated due to a settlement, issue an order either providing relief or denying

the complaint. The Secretary may not enter into a settlement terminating a proceeding on a

complaint without the participation and consent of the complainant. If the Secretary determines

that a violation of this provision has occurred, the Secretary will (1) order the person who

committed such violation to take affirmative action to abate the violation; (2) order such person to

reinstate the complainant to the complainant’s former position together with the compensation,

including backpay, terms, conditions, and privileges of the complainant’s employment; (3) order

compensatory damages; and (4) where appropriate, order exemplary damages. Whenever an order

is issued, at the request of the applicant, a sum equal to the aggregate amount of all costs and

expenses, including attorneys’ fees, will be assessed against the person who committed the

violation. Any employee or employer adversely affected or aggrieved by an order may obtain

review of the order in the U.S. court of appeals for the circuit in which the violation allegedly

occurred. The petition for review must be filed within 60 days of the issuance of the order. Such

review must conform to 5 U.S.C. §§ 701 et seq. Whenever a person has failed to comply with an

order, the Secretary will file a civil action in the U.S. district court for the district in which the

violation was found to occur. In actions brought under the TSCA’s whistleblower provisions, the

district courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and

compensatory and exemplary damages.

15 U.S.C. § 2622(a).

15 U.S.C. § 2622(b).

15 U.S.C. § 2622(c),(d).

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Whistleblower Protection Act (WPA)

The WPA49 generally provides protections for federal employees who make disclosures

evidencing illegal or improper government

To trigger protections under the WPA, a case must

activities. In order to trigger the protections of

contain the following elements, as defined under the

the WPA, a case must contain the following

act:

elements: a “personnel action” that was taken

•

A personnel action

because of a “protected disclosure” made by a

“covered employee.”

•

A protected disclosure

•

A covered employee

Covered Employees

Although anyone may disclose whistleblowing information for referral to the appropriate agency,

an investigation and report from the head of that agency is required only if the information is

received from a “covered employee.” In addition, with few exceptions, prohibited personnel

practices apply only to covered employees. Therefore, as a threshold matter, it is important to

note which federal employees are statutorily covered.

Generally, current employees, former employees, or applicants for employment to positions in the

executive branch of government and the Government Printing Office, in both the competitive and

the excepted service, as well as positions in the Senior Executive Service, are considered covered

employees.50 However, those positions that are excepted from the competitive service because of

their “confidential, policy-determining, policy-making, or policy-advocating character,”51 and any

positions exempted by the President based on a determination that it is necessary and warranted

by conditions of good administration,52 are not protected by the whistleblower statute.

Moreover, the statute does not apply to federal workers employed by the U.S. Postal Service or

the Postal Rate Commission,53 the Government Accountability Office, the Federal Bureau of

Investigation,54 the Central Intelligence Agency, the Defense Intelligence Agency, the National

Geospatial-Intelligence Agency, the National Security Agency, and any other executive entity that

the President determines primarily conducts foreign intelligence or counter-intelligence

activities.55 Agency heads are required to inform their employees of these protections.56

P.L. 101-12, 103 Stat. 16; P.L. 103-424, 108 Stat. 4361 (codified, as amended, in various sections of Title 5 U.S.C.).

5 U.S.C. § 2302(a)(2)(B).

5 U.S.C. § 2302(a)(2)(B)(i).

5 U.S.C. § 2302(a)(2)(B)(ii).

5 U.S.C. § 2105(e).

Another provision of federal law prohibits personnel practices in the FBI as a reprisal for a disclosure of information

to the Attorney General or his or her designee that the employee reasonably believes evidences “(1) a violation of any

law, rule, or regulation, or (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and

specific danger to public health or safety.” 5 U.S.C. § 2303(a)(1),(2).

5 U.S.C. § 2302(a)(2)(C).

5 U.S.C. § 2302(c).

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Protected Disclosures

Any disclosure of information that a covered employee reasonably believes evidences “a

violation of any law, rule, or regulation” or evidences “gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and specific danger to public health or safety” is

protected on the condition that the disclosure is not prohibited by law nor required to be kept

secret by executive order in the interest of national defense or foreign affairs.57 Moreover, any

disclosure made to the Special Counsel or to the Inspector General of an agency or another

employee designated by the head of the agency to receive such disclosures, which the employee

reasonably believes evidences “a violation of any law, rule, or regulation,” or evidences “gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific

danger to public health or safety” is also protected.58 In addition, the WPA expressly provides that

the statute is not to be interpreted as “authoriz[ing] the withholding of information from the

Congress or the taking of any personnel action against an employee who discloses information to

the Congress.”59

Personnel Actions

The WPA protects employees from reprisals in the form of an agency taking or failing to take a

“personnel action.” This encompasses a broad range of actions by an agency having a negative or

adverse impact on the employee. The statute specifically defines the term “personnel action” to

include 11 areas of agency activity:

(i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or other

disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;

(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under chapter 43 of

this title; (ix) a decision concerning pay, benefits, or awards, or concerning education or

training if the education or training may reasonably be expected to lead to an appointment,

promotion, performance evaluation, or other action described in this subparagraph; (x) a

decision to order psychiatric testing or examination; and (xi) any other significant change in

duties, responsibilities, or working conditions.60

5 U.S.C. § 2302(b)(8)(A).

5 U.S.C. § 2302(b)(8)(B).

5 U.S.C. § 2302(b). Based on the legislative history regarding this provision of the WPA, it appears that Congress

sought to protect its right to receive even “confidential” information from federal employees, without employee fear of

reprisals:

The provision is intended to make clear that by placing limitations on the kinds of information any

employee may publicly disclose without suffering reprisal, there is not intent to limit the

information an employee may provide to Congress or to authorize reprisal against an employee for

providing information to Congress. For example, 18 U.S.C. 1905 prohibits public disclosure of

information involving trade secrets. That statute does not apply to transmittal of such information

by an agency to Congress. Section 2302(b)(8) of this act would not protect an employee against

reprisal for public disclosure of such statutorily protected information, but it is not to be inferred

that an employee is similarly un-protected if such disclosure is made to the appropriate unit of the

Congress. Neither title I nor any other provision of the act should be construed as limiting in any

way the rights of employees to communicate with or testify before Congress. H.Rept. 95-1717

(Conference Report) (1978), reprinted in 1978 U.S. CODE CONG. & ADMIN. NEWS 2861.

See also 5 U.S.C. § 7211, providing that an employee is guaranteed the right to freely petition or furnish

information to Congress, a Member of Congress, a committee, or a Member thereof.

5 U.S.C. § 2302(a)(2)(A).

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The WPA also expressly protects employees from prohibited personnel practices taken because

they engaged in activities that are often related to whistleblowing, including exercising any

appeal, complaint, or grievance right granted by law, rule, or regulation; testifying for others or

lawfully assisting others in any such appeal, complaint, or grievance right; cooperating with or

disclosing information to an agency Inspector General or the Special Counsel; or for refusing to

obey an order that would be in violation of law.61

Forums Where Whistleblower Protections May Be Raised

Under the WPA, there are three general forums or proceedings where whistleblower protections

may be raised: (A) in employee appeals to the Merit Systems Protection Board (MSPB) of an

agency’s adverse action against the employee under chapter 77;62 (B) in actions instituted by the

Office of Special Counsel (OSC);63 and

Under the WPA, whistleblower protections may be raised in

three general forums or proceedings:

Beyond the statutory provisions of the

WPA, the defense or claim of reprisal for

(1) Employee appeals to the MSPB under chapter 77

whistleblowing might also be raised in a

(2) Actions instituted by the Office of Special Counsel

grievance proceeding initiated by an

(3) Individual rights of action

employee pursuant to a grievance

procedure that was negotiated through

collective bargaining between the employee’s agency and the employee union.65 An aggrieved

employee affected by a prohibited personnel action is precluded from choosing more than one of

the above remedies.66

Employee Appeals to the MSPB Under Chapter 77

The MSPB is authorized to hear and rule on appeals by employees regarding agency actions

affecting the employee and that are appealable to the Board by law, rule, or regulation.67 Types of

agency actions against employees that are appealable to the MSPB and in which an employee

may raise the defense of reprisal for whistleblowing as a prohibited personnel practice include

adverse actions against the employee for “such cause as will promote the efficiency of the

service” (generally referred to as conduct-based adverse actions),68 and performance-based

adverse actions against employees for “unacceptable performance.”69 In such appeals, an

agency’s decision and action will not be upheld if the employee “shows that the decision was

based on any prohibited personnel practice described in section 2302(b) of this title.”70 If the

MSPB finds that an employee or applicant for employment has prevailed in an appeal, the

5 U.S.C. § 2302(b)(9).

5 U.S.C. § 7701.

5 U.S.C. §§ 1211-1215.

5 U.S.C. § 1221.

5 U.S.C. § 7121.

5 U.S.C. § 7121(g)(2).

5 U.S.C. § 7701, 5 U.S.C. § 1205.

5 U.S.C. § 7513(a).

5 U.S.C. § 4303(a).

5 U.S.C. § 7701(c)(2)(B).

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employee or applicant may be provided with interim relief, pending the outcome of any petition

of review.71 Moreover, the Special Counsel may not intervene in an appeal under chapter 77

without the consent of the individual bringing the appeal.72

Actions by the Office of Special Counsel (OSC)

The WPA established the OSC as an agency independent from the MSPB.73 Its primary

responsibilities, however, have remained essentially the same as set forth in its statutory

predecessor, the Civil Service Reform Act (CSRA). With the goal of protecting employees,

former employees, and applicants for employment from prohibited personnel practices, the OSC

has the duty to receive allegations of prohibited personnel practices and to investigate such

allegations,74 as well as to conduct an investigation of possible prohibited personnel practices on

its own initiative, absent any allegation.75

The Special Counsel has several avenues available through which to pursue allegations,

complaints, and evidences of reprisals for whistleblowing activities, including (1) requiring

agency investigations and agency reports concerning actions the agency is planning to take to

rectify those matters referred;76 (2) seeking an order for “corrective action” by the agency before

the MSPB;77 (3) seeking “disciplinary action” against officers and employees who have

committed prohibited personnel practices;78 (4) intervening in any proceedings before the MSPB,

except that in cases where an individual has brought an individual right of action (IRA) under

Section 1221 or an appeal to the MSPB under chapter 77, the OSC must first obtain the

individual’s consent;79 and (5) seeking a stay from the MSPB for any personnel action pending an

investigation.80

Investigations81

Within 240 days of receipt of a complaint, the OSC must make a determination as to whether

there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists,

5 U.S.C. § 7701(b)(2)(A).

5 U.S.C. § 1212(c)(2).

5 U.S.C. § 1211(a). It provides that the Office of Special Counsel (OSC) will be headed by the Special Counsel and

have a judicially noted official seal. The Senate report states that although the MSPB and the OSC had “separated

themselves administratively in 1984,” the whistleblower legislation “completes this process by establishing the OSC as

an independent agency.” S.Rept. 100-413 at 18. Moreover, the statute provides that the Special Counsel, appointed by

the President, with the advice and consent of the Senate, may only be removed from office for “inefficiency, neglect of

duty, or malfeasance in office.” 5 U.S.C. § 1211(b).

5 U.S.C. § 1212(a)(2).

5 U.S.C. § 1214(a)(5).

5 U.S.C. § 1213(c).

5 U.S.C. § 1214(b)(2).

5 U.S.C. § 1215(b).

5 U.S.C. § 1212(c).

5 U.S.C. § 1212(b)(1).

In addition to investigating whether prohibited personnel actions have been taken because of protected

whistleblowing disclosures, the WPA also charges the OSC with investigating whether there is a “substantial

likelihood” that whistleblowing disclosures evidence violations of a law, rule or regulation. 5 U.S.C. §1213(b).

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or is to be taken.82 If a positive determination is made and the information was sent to the Special

Counsel by an employee, former employee, applicant for employment, or an employee who

obtained the information acting within the scope of employment,83 the Special Counsel must

transmit the information to the appropriate agency head and require that the agency head conduct

an investigation and submit a written report.84 The identity of the complaining employee may not

be disclosed without such individual’s consent, unless the Special Counsel determines that

disclosure is necessary to avoid imminent danger to health and safety or an imminent criminal

violation.85 The Special Counsel then reviews the reports as to their completeness and the

reasonableness of the findings86 and submits the reports to Congress, the President, the

Comptroller General,87 and the complainant.88

If the Special Counsel does not make a positive determination, however, he or she may only

transmit the information to the agency head with the consent of the individual.89 Further, if the

Special Counsel receives the information from some source other than the ones described above,

he or she may transmit the information to the appropriate agency head, who shall inform the

Special Counsel of any action taken.90 In any case where the subject of the whistleblowing

disclosure evidences a criminal violation, however, all information is referred to the Attorney

General and no report is transmitted to the complainant.91

At least every 60 days throughout its investigation, the OSC must give notice of the status of the

investigation to the individual who brought the allegation.92 In addition, no later than 10 days

before the termination of an investigation, a written status report including the proposed findings

and legal conclusions must be made to the individual who made the allegation of wrongdoing.93

Corrective Actions

If in any investigation the Special Counsel determines that there are “reasonable grounds to

believe” a prohibited personnel practice exists or has occurred, the Special Counsel must report

findings and recommendations, and may include recommendations for corrective action, to the

MSPB, the agency involved, the Office of Personnel Management (OPM) and, optionally, to the

President.94 If the agency does not act to correct the prohibited personnel practice, the Special

Counsel may petition the MSPB for corrective action.95 The MSPB, before rendering its decision,

is required to provide an opportunity for oral or written comments by the Special Counsel, the

5 U.S.C. § 1214(b)(2)(A)(i).

5 U.S.C. § 1213(c)(2).

5 U.S.C. § 1213(c)(1).

5 U.S.C. § 1213(h).

5 U.S.C. § 1213(e)(2).

5 U.S.C. § 1213(e)(3).

5 U.S.C. § 1213(e)(1).

5 U.S.C. § 1213(g)(2).

5 U.S.C. § 1213(g)(1).

5 U.S.C. § 1213(f).

5 U.S.C. § 1214(a)(1)(C)(ii).

5 U.S.C. § 1214(a)(1)(D).

5 U.S.C. § 1214(b)(2)(B).

5 U.S.C. § 1214(b)(2)(C).

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agency involved, and the OPM, and for written comments by any individual who alleges to be the

victim of the prohibited personnel practices.96

The WPA made it easier for a complainant to prove retaliation for whistleblowing in a corrective

action before the MSPB. The Special Counsel need only prove by a preponderance of the

evidence that the disclosure was a “contributing factor” in the personnel action, instead of a

“significant factor.”97 In addition, once the MSPB renders a final order or decision of corrective

action, complainants have the right to judicial review in the U.S. Court of Appeals for the Federal

Circuit.98

In what is probably the most significant change from its statutory predecessor, the CSRA, the

WPA increased the standard by which an agency must prove its affirmative defense that it would

have taken the personnel action even if the employee had not engaged in protected conduct. Once

the complainant’s prima facie case of reprisal has been established by showing that the

whistleblowing was a contributing factor in the personnel action, the government is required to

demonstrate by “clear and convincing evidence” that it would have taken the same personnel

action even in the absence of such disclosure.99 Under the CSRA, the government’s standard of

proof was a “preponderance of the evidence.” “Clear and convincing evidence,” although a lesser

standard than the criminal standard of “beyond a reasonable doubt,” is greater than

“preponderance of the evidence.”

Disciplinary Actions

Proceedings for disciplinary action against an officer or employee who commits a prohibited

personnel practice may be instituted by the Special Counsel by filing a written complaint with the

MSPB.100 After proceedings before the MSPB or an administrative law judge,101 if violations are

found, the MSPB may impose any of various disciplinary actions, including removal, reduction in

grade, debarment from federal employment for a period not to exceed five years, suspension,

reprimand, or an assessment of civil fines up to $1,000.102 In addition, the agency involved may

be held responsible for reasonable attorney’s fees.103 In the case of presidentially appointed and

Senate confirmed employees in “confidential, policy-making, policy-determining, or policyadvocating” positions, the complaint and the statement of facts, along with any response from the

employee, are to be presented to the President for disposition in lieu of the presentation to the

Board.104

5 U.S.C. § 1214(b)(3).

5 U.S.C. §1214(b)(4)(i).

5 U.S.C. § 1214(c).

5 U.S.C. § 1214(b)(4)(B).

100

5 U.S.C. § 1215(a)(1).

101

5 U.S.C. § 1215(a)(2)(C).

102

5 U.S.C. § 1215(a)(3).

103

5 U.S.C. § 1204(m)(1).

104

5 U.S.C. § 1215(b).

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Whistleblower Protections Under Federal Law: An Overview

Intervention

As a matter of right, the Special Counsel may intervene or otherwise participate in any

proceedings before the MSPB, except that in cases where an individual has brought an individual

right of action (IRA) under Section 1221, discussed below, or an appeal to the MSPB under

chapter 77, the OSC must first obtain the individual’s consent.105

Stays

Upon application by the OSC, a member of the MSPB may stay or postpone, for 45 days, pending

an investigation, a personnel action that the Special Counsel has reasonable grounds to believe

constitutes a prohibited personnel practice, unless the member determines that a stay would not

be appropriate under the circumstances.106 If no MSPB member acts within three days of the OSC

application, the stay becomes effective.107 After the employing agency has had an opportunity to

comment on the appropriateness of extending a stay, the MSPB may extend it.108 A stay may be

terminated by the MSPB at any time, except that a stay may not be terminated by the MSPB on

its own motion or on the motion of an agency, unless notice and opportunity for oral or written

comments are first provided to the Special Counsel and the individual on whose behalf the stay

was ordered; or on a motion of the Special Counsel, unless notice and opportunity for oral or

written comments are first provided to the individual on whose behalf the stay was ordered.109

Individual Right of Action (IRA)

The WPA provides that an employee, former employee, or applicant for employment has the

independent right to seek review of whistleblower reprisal cases by the MSPB no more than 60

days after notification is provided to such employee that the investigation was closed or 120 days

after filing a complaint with the OSC.110 As a result of the IRA statutory provisions, a greater

number of employees, including probationers, temporaries, and those in the excepted service,

have a method of appeal to the MSPB for whistleblower reprisals that was not previously

available under the CSRA.111 In addition, retired employees are not barred from instituting this

type of appeal.112

If the employee is the prevailing party before the MSPB, based on the finding of a prohibited

personnel practice, or if the employee is the prevailing party in an appeal to the MSPB, regardless

of the basis of the decision, the WPA provides several remedies. These may include placing the

individual, as nearly as possible, in the position the individual would have been in had the

prohibited personnel practice not occurred, awarding back pay and related benefits, recompensing

medical costs incurred, travel expenses, or any other reasonable and foreseeable consequential

105

5 U.S.C. § 1212(c).

5 U.S.C. § 1214(b)(1)(A)(i),(ii).

107

5 U.S.C. § 1214(b)(1)(A)(iii).

108

5 U.S.C. § 1214(b)(1)(B),(C).

109

5 U.S.C. § 1214(b)(1)(D).

110

5 U.S.C. §§ 1221, 1214(a)(3).

111

5 U.S.C. § 7701.

112

5 U.S.C. § 1221(j).

106

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Whistleblower Protections Under Federal Law: An Overview

charges.113 In all cases, corrective action includes awarding attorneys’ fees.114 The MSPB findings

can be based on circumstantial evidence.115 Moreover, the Special Counsel may not intervene in

an individual right of action without the consent of the individual bringing the appeal.116

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

113

5 U.S.C. § 1221(g)(1)(A)(i),(ii).

5 U.S.C. § 1221(g)(1)(B).

115

5 U.S.C. § 1221(e)(1).

116

5 U.S.C. § 1212(c)(2).

114

Congressional Research Service

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