Kator, Parks, Weiser & Harris, PLLC

A Washington, D.C. based law firm with a civil practice in employment law

Category: Whistleblower

Federal employees must know their rights under whistleblower laws

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.

Gag Orders Cannot Trump Employees’ Free Speech Rights

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.

Whistleblower Protection Beyond OSC

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.

FDA Employee Email Surveillance Raises Concerns of Congress and OSC

The Washington Post reported that, according to Congressional investigators, the Food and Drug Administration’s Chief Counsel’s office authorized the agency to secretly monitor the emails and online activity of FDA scientists who were potentially engaged in protected whistleblowing activity. Since January 2012, Sen. Charles E. Grassley and the Senate Judiciary Committee have been investigating the FDA’s recent admission that, beginning in 2010 it authorized the surveillance of employees’ government computers and even personal email accounts. The FDA has claimed it began the surveillance solely for the purpose of determining whether the scientists had improperly leaked confidential and trade secret protected information for a 2010 New York Times article about the FDA’s review procedures for medical imaging devices. In that article, the scientists took issue with FDA’s process, alleging that it led to the improper approval of devices which exposed patients to dangerous radiation. The FDA’s surveillance, conducted by a third-party contractor, cataloged the activity of dozens of employees, media outlets, and elected officials, including members of Congress. The contractor also collected protected communications between employees and their attorneys, as well as drafts of employee grievances and complaints, and disclosures made to members of Congress.

In addition to the Senate Judiciary Committee, the Office of Special Counsel has also been investigating the FDA’s surveillance efforts to determine whether FDA violated federal anti-whistleblowing laws.  Several of the scientists being monitored filed employee grievances and a federal lawsuit, and were either fired or passed over for promotions after the surveillance program began.  OSC made an initial determination that the employee’s grievances about whistleblowing warranted a full investigation.  OSC Special Counsel Carolyn Lerner issued a warning to federal agencies in June 2012, stating that while monitoring federal employee’s official government emails and computers is in some cases permitted, it violates the law if the intent of the surveillance is to retaliate against whistleblowers.  The White House re-issued OSC’s warning across the government, indicating there are limits on employee surveillance, particularly when protected whistleblowing activity is involved.

If you believe you have been retaliated for protected whistleblowing, contact Kator, Parks, and Weiser.  Our firm has experience protecting and defending the rights of federal employees.

 

What Evidence Do You Need to Support a Whistleblower Retaliation Claim?

Federal employees are protected from retaliation for protected whistleblowing activity.  But what evidence do you need to support a whistleblower retaliation case?  A recent decision by the Federal Circuit helps clarify what evidence should be reviewed.

What is Whistleblowing?

Whistleblowing means disclosing information that an employee or applicant reasonably believes evidences a violation of any 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 or safety.

Whistleblower Protection Act

In 1989, Congress enacted the Whistleblower Protection Act, which, among other provisions, prohibits retaliation for whistleblowing.  See 5 U.S.C. § 2302(b)(8).  In order for an employee or applicant to prove retaliation for whistleblowing, the courts have employed a burden-shifting scheme, where the employee or applicant must prove by a preponderance of the evidence that he or she made a protected disclosure that was a contributing factor in the personnel action threatened, taken, or not taken against the employee or applicant.  If the employee or applicant is able to establish that the protected disclosure was a contributing factor, the Merit Systems Protection Board (“MSPB”) will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken “the same personnel action in the absence of such disclosure.”  5 U.S.C. § 1221(e).  The clear and convincing standard of proof is higher than the preponderance of the evidence standard.

Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the MSPB must weigh three factors in making a determination whether an agency has met the clear and convincing standard of proof: (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers.

Whitmore Decision

In a recent case, the United States Court of Appeals for the Federal Circuit, the court stated that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”  Whitmore v. Department of Labor, No. 2011-2084 (Fed. Cir. May 30, 2012).

In Whitmore, the Federal Circuit reviewed an appeal from a former employee who challenged the Department of Labor’s decision to remove him for his allegedly disruptive and insubordinate behavior.  The MSPB affirmed the agency’s removal decision, and held that the employee did not prove his affirmative defense that the removal constituted unlawful retaliation for making protected disclosures.  The Federal Circuit reversed the MSPB decision, and remanded the case for further fact finding.

The court stated that the MSPB excluded or ignored evidence offered by the employee that was necessary to adjudicate his claim of whistleblower retaliation.  Specifically, the MSPB failed to evaluate all the relevant evidence in the aggregate, as the MSPB focused solely on the evidence that supported the agency’s removal decision.  The court also found that the MSPB erred when it excluded witnesses from the hearing who could have supported the employee’s claim of whistleblower reprisal.  And the court found the MSPB’s interpretation of “similarly situated” employees who were not whistleblowers to be unduly restrictive, as the required degree of similarity between employees cannot be read so strictly that the only evidence helpful to the inquiry is completely disregarded.

The court reaffirmed the vital role that whistleblowers play in society and the critical need to protect them:

“Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate.  Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.”

The attorneys at Kator, Parks & Weiser have extensive expertise in representing federal employees who allege retaliation for making protected whistleblowing disclosures.  Contact us today for a free consultation.