New Whistleblower Legislation Takes Flight: Will it Become the Next Law of Unintended Consequences?

By on March 6, 2007 in Current Events with 0 Comments

By Tim Dirks and Bob Gilson

The Congress is considering new legislation to expand whistleblower protections. The legislation, as drafted, would expand the scope of whistleblower allegations that would be accepted for review, expand the extent of the Merit System Protection Board’s authority to sanction violators, and expand the scope of an alleging employee’s right to seek judicial review. Congressional resolve has been strengthened after several years of expressed concerns by whistleblower advocacy groups, a long string of Congressional hearings featuring employee testimony alleging reprisal for coming forward in the public interest, and a series of court decisions over the years (the most recent being the Supreme Court’s 2006 decision in Garcetti v. Ceballos) that have had the effect of limiting and circumscribing whistleblower protections for public employees.

For several years various Senate and House Members have introduced legislation to address what they and others have interpreted as inadequate protections afforded to individuals who disclose alleged wrongdoing in their agencies. These bills have often been passed in committee only to languish in the Congressional ether and not brought to the full floor for a vote or are mysteriously removed during House-Senate negotiations on final bill language. However, leaders in the new Democratically-controlled Congress have vowed to push harder this year to enact the new legislation that has been recently introduced as S. 274 and HR 985 in their respective chambers.

There is no doubt that some legitimate whistleblowers who have bravely disclosed legitimate waste, fraud, mismanagement and/or serious health and safety violations have been given short shrift by their agencies and/or third party reviewers in the course of the many claims arising since the passage of the Civil Service Reform Act (CSRA) legislation of 1978 and the Whistleblower Protection Act of 1989.

The CSRA made it a prohibited personnel practice for managers to either take a personnel action against an employee because of whistleblowing or to take a personnel action against any employee because of the exercise of an appeal, complaint, or grievance right. The Whistleblower Protection Act sought to expand these protections. Since the time of their passage a debate has raged as to whether these laws have been properly interpreted and provided the protections envisioned to legitimate whistleblowers.
House and Senate Bills Virtually Identical

The bills are virtually identical and contain several significant changes to the current rubric of laws and standards governing whistleblower protections including: widening the definition of a protected disclosure; giving the Merit Systems Protection Board authority to discipline and fine Federal managers; and expanding employee appeal processes to include a right to a jury trial in a Federal District Court if the Board does not act promptly on an employee’s claim. Whistleblower proponents are very pleased with these bills that would, if enacted, appear to turn the tables on a long line of legal interpretations that have limited the scope of protected disclosures and “disclosees.” A lot of momentum is building for their passage and Congressional sponsors from both parties are lining up like politically correct missionaries giving away free tee shirts. Here’s a closer look at some of what is being proposed:
Expanded Definition of Protected Disclosures

This legislation would change the current law on protected disclosures to replace language currently limiting a disclosure, “which the 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…” to (a disclosure) “without restriction to time, place, form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, that the employee or applicant reasonably believes is evidence of 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…”

Gives MSPB Authority to Impose Discipline

In any case in which the Board (MSPB) finds that an employee has committed a prohibited personnel practice…, “the Board shall impose disciplinary action if the Board finds that the activity…, was a significant motivating factor, even if other factors also motivated the decision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by preponderance of evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.”

The new law provides that a final order of the Board may impose disciplinary action against offending managers consisting of, “… removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand; an assessment of a civil penalty not to exceed $1,000; or any combination of disciplinary actions described…”
Provides Whistleblowers a Day in District Court if MSPB Decision Lags and More

Employees make take their appeal to a Federal District Court if MSPB doesn’t decide their case within 180 days. In an unusual move similar to existing law government Federal sector discrimination complaints, the bills provide a District Court trial. In the past, employees had to wait for a Board decision then seek review from the Federal Circuit, which has had exclusive jurisdiction over Board cases since 1979. In addition, employees may appeal an MSPB or District Court decision to the Circuit Court of Appeals in which the disclosure or alleged claim of reprisal was made. The legislation would also provide for compensatory damages for prevailing whistleblowers, similar to that provided for those who prevail in EEO cases in the court system.
Expands Federal Sector Employees’ Free Speech Rights

The bills would cancel the effect of Garcetti v. Ceballos that working in the public sector does not create an unconditional right of free speech in the workplace and when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Extends Protection to National Security Whistleblowers and Allows Disclosure of Classified Information to Congress and its Committees

The bills would extend whistleblower protections to national security whistleblowers including those in the FBI and intelligence agencies. Also, the bills would extend rights to federally-funded contractors. In a closely related measure, the bills would restore independent due process review of security clearance determinations for whistleblower reprisal claims, unavailable since a 1985 Supreme Court decision. The proposed law also provides specific authority for whistleblowers to disclose classified information to member of Congress and Congressional oversight committees.

Does the New “Gold Standard” Go Too Far?

Supporters of the legislation have referred to the expanded package of protections as a “gold standard” for embattled public employees – and it certainly appears to be the most sweeping and dramatic of whistleblower reform legislative proposals to-date.
However, the real question is, if enacted, would this sweeping new legislation go too far and create significant unintended consequences in the Federal workplace dispute resolution system, including the checks and balances that impact how agency managers and employees interact on a day to day basis, including the ability to address employee misconduct and poor performance.

In the worst case scenario, the new law would nourish a new breed of disclosers who would make whistleblowing their defense of choice in attempting to shield themselves from disciplinary actions that otherwise would be warranted due to an unwillingness or inability to successfully perform their jobs. If successful in insulating themselves, they then would be free to seek compensatory damages via settlements or from juries in their local court jurisdictions.

How Would the Proposed Law Affect Management and Managers?

This question is admittedly speculative at this time; however, it should loom large in terms of whether legislative change of the magnitude proposed could significantly hinder agency operations, impair mission objectives, compromise classified information, and/or put Federal managers at a serious disadvantage in terms of exercising their supervisory and workforce management rights and responsibilities. A closely related question is what costs (both literally and figuratively) would come with the new protections?

These include the potential costs of increased litigation, compensatory damage awards, and the less easy-to-quantify costs associated with workforce downtime and disruption as well as managerial gridlock and/or demoralization in cases involving poor performing or problem employees who might be tempted to, “without restriction to time, place, form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties,” become the next legion of protected disclosers claiming reprisal for personnel actions affecting them that they consider unwarranted. In this regard, the newly proposed legislation raises some red flags. For example, the proposed changes would appear to require acceptance of an employee reprisal claim for investigation whenever made, wherever made, however made, for whatever potential motive the person might have, made to just about anybody, and no matter that the individual may have made the same or any kind of allegation before. Also, under the proposed law, managers may face removal, fines or both if the reprisal is found to be a factor in taking action against a problem employee, even if the action for the employee’s underlying misconduct is found to be otherwise warranted.
Careful Consideration Is Warranted Before Passage of New Legislation

We hope these bills are given careful consideration and that the apparent rush-to-judgment mentality gives way to a full colloquy of viewpoints and vetting of issues that focus on the potential impact of creating a juiced-up venue for erstwhile whistleblowers. At the heart of the discourse should be the matter of checks and balances, keeping in mind that Federal managers and their organizations have a mission to get done and resources, usually very limited, to do it. This reality needs balancing against the public policy imperative of protecting those employees who make disclosures they reasonably believe evidence serious health or safety violations, abuse of authority, fraud, waste, and, ironically, gross mismanagement of the agency’s mission.

From a management standpoint, if you are a Federal supervisor and have an employee who is creating problems whether abusing leave rules (the most common), violating standards of conduct, or performing poorly (less common), at what point are you willing to devote the considerable time and energy necessary to take appropriate corrective and/or disciplinary action? Although employee discipline is easy in concept it is not so easy in implementation. There are already lots of organizational hoops, policy, regulatory and legal requirements, and third party reviews that managers must satisfy in these processes, not to mention the significant investment of time and reputational risks associated with pursuing needed remedial action. Further, several recent government-wide surveys have shown that Federal managers are already struggling to carry-out their basic supervisory responsibilities and need considerable additional training and top management support to become more effective and regain the confidence of the workforces they are attempting to manage.
Mindful Recalibration of the Federal Dispute Resolution System Needed

In the current system of Federal dispute resolution, employees and their lawyers, union representatives, special interest program advocates, inspectors general, the Special Counsel, MSPB, EEOC, FLRA and others scrutinize and often challenge perceived managerial missteps, alleged discriminatory or retaliatory motives, or claimed harmful procedural violations. This is the way it is, a constant ebb and flow of employee interests and agency interests – employee rights vs. agency rights – hopefully culminating in sensible and just resolutions and creating some common ground upon which to move forward. In this environment both employee and agency rights are subject to checks, balances and independent reviews built into the system to guard against arbitrary, capricious, and unwarranted personnel actions. It is not a perfect or a particularly timely or savory system but the end game is usually replete with due process and gives employees opportunities (and sometimes several chances) to challenge actions they consider unfair or taken for prohibited reasons.

Any change to this intricate web of rights and responsibilities should not be taken lightly and needs a full and open airing of issues by independent thinkers and interested parties. That is, the new whistleblower metro-liner train needs Congressional conductors who will seek the views of the full panoply of stakeholders, including third party adjudicatory agencies, good government groups, union leaders, whistleblower advocators, and managers’ associations to name a few. Let’s not get so focused on the “big splash” that we forget about the ensuing “ripple effect” that will shift the sands of government for a long time. Without this type of full vetting and careful balancing we fear that this much heralded legislation could become the next public law of unintended consequences.

Messrs. Dirks and Gilson are former senior human resources managers in the Federal government. Prior to his retirement Mr. Gilson was the senior Labor and Employee Relations Officer at the National Transportation Safety Board. Mr. Dirks served as Director of Human Resources Management at the Department of Energy prior to his retirement. Both are currently involved in Federal sector HR consulting. The views expressed in this article are theirs alone and do not necessarily represent the position or viewpoints of any other organization. They welcome readers’ reactions to this article.

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