Are Whistleblowers More Likely to Be Fired if They Are Probationary Employees?

May 28, 2020 3:57 PM , Updated June 9, 2020 11:36 AM
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The Government Accountability Office has issued a report which analyzes termination rates among federal employees who file whistleblower disclosures and retaliation complaints.

One question GAO attempted to address was whether or not whistleblowers are more likely to be fired. According to GAO’s figures, any federal employee who files complaints is more likely to be removed. “GAO estimates suggest that both permanent and probationary employees who filed complaints were consistently terminated at higher rates than federal employees government-wide,” wrote GAO.

One example the report provides to support this conclusion is that in FY 2018, GAO found that the termination rate for probationary employees government wide was 1.1% versus 10.1% for probationary employees who filed a complaint. For permanent employees the numbers were 0.3% and 2.9%, respectively.

The agency wrote that its “estimates also suggest that probationary employees who filed complaints were terminated at higher rates than permanent employees who did the same.”

And what about probationary employees versus permanent employees? Does a federal employee’s employment status in this area make a difference? GAO’s report indicates it would appear that is the case. Here are more details from GAO’s data:

  • The lowest estimated termination rate for probationary employees who filed whistleblower disclosures (10.1 percent) exceeded the maximum estimated rate for permanent employees who did the same (5.2 percent).
  • The lowest estimated termination rate for probationary employees who filed retaliation complaints (17.4 percent) exceeded the maximum estimated rate for permanent employees who did the same (9.9 percent).
  • The lowest estimated termination rate for probationary employees who filed both types (14.1 percent) exceeded the maximum estimated rate for permanent employees who did the same (13.2 percent).

So is this a problem? GAO offered this analysis regarding the Office of Special Counsel’s filing procedures:

The Office of Special Counsel’s (OSC) complaint form allows but does not require complainants to identify whether they are probationary or permanent employees when filing a whistleblower disclosure or retaliation complaint. OSC officials said they try to limit mandatory data fields to the information that is necessary for processing a case, and that they have no plans to do any analysis of employees in their probationary period who file claims. However, the higher rates of termination GAO found for filers generally, and probationary employees specifically, suggests that there could be a risk of unequal treatment. Without first identifying probationary employees who file whistleblower claims, OSC would lack complete data should it decide at some point to analyze the effect of probationary status on filers. Collecting and maintaining such data on every claimant would provide OSC or other entities the ability to analyze termination rates or other issues related to a whistleblower’s probationary status.

GAO recommended in its report that OSC should require federal employees who are filing whistleblower disclosures or retaliation complaints to identify on their complaint forms their status as a permanent or probationary employee.

Case Closed?

So is that the end of the story? That seems to depend on who you ask.

OSC disagreed with the report, stating that it “overreaches.”

OSC said in its response to the report:

The report appears to conclude that probationary employees who file complaints are terminated at significantly higher rates than permanent employees. This is hardly surprising. Probationary employees, by the very nature of their non-permanent status in the civil service design structure, will be terminated at greater rates than permanent employees. …this is an intentional feature (and valuable tool when used appropriately) of the civil service system.

…GAO appears to connect the expected greater rate of termination of probationary employees instead to whistleblower retaliation, based on correlative data and without taking into account key factors such as justification for the termination, timing in relation to the disclosure or the filing of a complaint, or merit of the individual’s complaint. Absent this type of crucial, detailed analysis that could help determine causation, I believe few, if any, conclusions can be drawn regarding any alleged retaliation experienced by probationary employees.

GAO said in the report it stands by its recommendation, stating, “…we continue to believe that our recommendation for OSC to collect complete and accurate data on probationary status is warranted as such analysis is not possible without it.”

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About the Author

Ian Smith is one of the co-founders of FedSmith.com. He enjoys writing about current topics that affect the federal workforce.

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