The Whistleblower Protection Enhancement Act of 2012 takes effect today (December 27). The Act makes significant changes to the way federal employees report wrongdoing within the government.
Some of the changes made by the Act include:
- Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights
- Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports
- Establishes explicit whistleblower protections for Transportation Security Administration employees
- Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions
- Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers’ presenting their evidence of retaliation
According to Tully Rinckey PLLC Partner and Chair of the Labor and Employment Practice John P. Mahoney, “This is a game changer for whistleblowers. It closes many of the loopholes that supervisors exploited so they could retaliate against employees who exposed wrongs. We are now dealing with a much more level playing field.”
Tully Rinckey PLLC has created the following summary scorecard to track who among the federal workforce is likely to gain the most from the Act.
| Whistleblower Protection Enhancement Act of 2012 |
|
Winner
|
Why
|
| TSA employees |
- The WPEA extends statutory whistleblower protections to all TSA personnel, whereas only some had previously been granted these rights.
|
| Researchers and scientists |
- The WPEA broadens the definition of a protected disclosure to include “censorship related to research, analysis, or technical information,” which involves the distortion, misrepresentation, or suppression of research, analysis, or technical information.
|
| Security clearance holders (outside of WPA-excepted agencies) |
- The WPEA provides for fees, costs, and damages stemming from cases where a corrective action was ordered in response to a retaliatory employee investigation.
|
| Recipients of unfavorable MSPB decisions |
- The WPEA opens reviews of Merit Systems Protection Board decisions to “any court of appeals of competent jurisdiction,” not just the U.S. Court of Appeals for the Federal Circuit.
|
| Federal employees |
- The WPEA expands the definition of a protected disclosure to include:
- Disclosures made to a supervisor or official authorized to recommend, direct, or approve personnel actions who are prohibited from retaliating against whistleblowers;
- Disclosures of previously revealed information;
- Disclosures regardless of the employee’s motive in disclosing;
- Disclosures not made in writing or made while off duty; or
- Disclosures relating to events that happened long ago.
- The WPEA allows the Office of Special Counsel to appear as an amicus curiae (“friend of the court”) to provide its perspective on whistleblower compliance and enforcement issues.
- The WPEA requires each inspector general to designate a whistleblower ombudsman.
- The WPEA requires the Government Accountability Office to conduct a study on the Act’s impacts on the disposition of whistleblower retaliation cases at the MSPB.
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