Whistleblower Protection Act

What is the Whistleblower Protection Act?

The Whistleblower Protection Act of 1989 is a law that protects federal government employees in the United States from retaliatory action for voluntarily disclosing information about dishonest or illegal activities occurring in a government organization.

This law, sometimes called the WPA, also prohibits a federal agency from taking action or threatening to take action against an employee or applicant for disclosing information that he or she believes violated a law, compliance rule or another regulation. The disclosed information could include reports of management wrongdoing, the waste of funds, an abuse of authority and a potential risk to public health or safety.

The U.S. Office of Special Counsel (OSC) has jurisdiction over allegations of federal whistleblower retaliation and investigates federal whistleblower complaints.

Who qualifies as a whistleblower?

A whistleblower is anyone who uncovers activities that could be illegal, unethical or inappropriate and then reports that activity to authorities or otherwise makes the activities known -- i.e., reporting the wrongdoing to a news outlet.

A whistleblower can be someone working in or with the public sector at the local, state or federal government level.

A whistleblower might also be someone working in or with private, for-profit companies, as well as nonprofit entities.

Many states have whistleblower laws, and those laws generally offer protections for whistleblowers in state and local government, as well as those working in the private sector. However, the WPA specifically applies to whistleblowers within the federal government.

History of whistleblower laws

The United States has a history of protecting whistleblowers, with some citing a 1778 law passed by the Continental Congress during the American Revolutionary War as the first federal law protecting whistleblowers. Congress passed the law in response to a 1777 case in which 10 sailors filed a petition stating that their politically connected Continental Navy commodore tortured British prisoners.

Other federal laws through the centuries have also offered some level of protection, with some pointing to the First Amendment right of free speech as offering protection for whistleblowers, too.

More recently, the Civil Service Reform Act of 1978 codified some whistleblower rights and protections that governed whistleblower cases filed by federal employees for a decade before the passage of the WPA.

However, the lawmakers that passed the WPA in 1989 did so specifically to better protect federal employees, stating in the text of the law that "The purpose of this Act is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government."

The 1989 law took several steps to strengthen protections for federal employees, including clarifying the procedure that employees should use to report suspected wrongdoing and avoid retaliation.

How the Whistleblower Protection Act works

The WPA covers current and former federal employees, as well as applicants for federal government jobs.

According to the act, a federal employee can report misconduct to the Office of the Special Counsel (OSC). The act considers misconduct to include the following:

• A violation of a law, rule or regulation.
• Gross mismanagement.
• Gross waste of funds.
• Abuse of authority.
• A substantial and specific danger to public health or safety.
• Censorship related to scientific research if censorship meets one of the above-listed categories.

The OSC does not investigate the claims itself; rather, they review the claim to determine the likelihood of wrongdoing -- which the act establishes as having reliable, firsthand knowledge of the misconduct.

If the OSC determines there's a likelihood of wrongdoing, it refers the claim to the appropriate regulatory or governing agency for further investigation. The agency leading the investigation must investigate the claim and report back to the OSC within 60 days.

The act states that an employee who makes disclosures as a whistleblower and then is subject to retaliatory actions can report the suspected acts of reprisal to the OSC, which would further investigate the charge.

It's important to note that the WPA does not cover all federal workers, nor does it allow the OSC to handle all claims. For example, the OSC would not handle claims for employees of federal contractors or military members. Moreover, employees of federal intelligence agencies such as the CIA and FBI do not have the same processes and protections that the WPA provides for other federal workers.

Additional whistleblower protections

Congress passed the Whistleblower Protection Enhancement Act of 2012 to substantially strengthen protections for federal whistleblowers. Those additional protections included the following:

• Clarifying the scope of protected disclosures.
• Creating enhanced remedies for workers who have been subjected to retaliatory actions.
• Requiring agencies to educate employees about their rights.

In addition, other laws passed in the 2000s, such as the Dodd-Frank Act, the Sarbanes-Oxley Act, and the Department of Veterans Affairs' Office of Accountability and Whistleblower Protection, offer protections for workers who act as whistleblowers.