October 5, 2012

The Long and Winding Road to Whistleblower Protections for Government Employees

By Marlene Koury

On September 28, the House of Representatives unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”), various versions of which have been making the rounds in Congress for the past decade.  The WPEA includes 10 reforms to the existing Whistleblower Protection Act (“WPA”), passed in 1989, which was supposed to protect from retaliation federal employees who report government fraud, waste and abuse.  Despite this objective, the WPA has failed to offer whistleblowers adequate protections against retaliation.  It has also failed to hold accountable those responsible for the retaliation.  The bipartisan-supported WPEA aims to shore up this gap in protection and more.  

Among other reforms, the WPEA will expand the types of employee disclosures that are protected, which will rectify court decisions that have greatly narrowed the scope of who is covered by the Act.  It will restore the ability of the Office of Special Counsel’s (“OSC”) ability to seek disciplinary actions against agency personnel who engage in any retaliation against whistleblowers.  It will strengthen the remedies available to whistleblowers by offering compensatory damages for retaliation and damages or costs associated with an improper agency investigation into a whistleblower’s activities.  And it will require agencies to designate a Whistleblower Protection Ombudsman to inform government employees of their rights and of the protections available to them under the law.   The DOJ announced the creation of such an ombudsman in August.  See Taking Internal Whistleblowers More Seriously — The DOJ’s New Whistleblower Ombudsperson Position.   The OSC said in a statement that these long-awaited reforms “will make the Whistleblower Protection Act stronger than at any point in its history.”  

Although the bill has been met with praise among many groups, some nongovernmental groups were disappointed that certain provisions were removed from the final version of the bill.  Tome Devine, legal director for the Government Accountability Project said that “[d]emands by a few key Republicans removed provisions for jury trials that Congress has provided for nearly all corporate whistleblowers, and national security reforms to prevent classified leaks through protection for those who act responsibly within government’s institutional checks and balances.” 

Others expressed disappointment that the bill has taken so long to become law.  Angela Canterbury, from the Project on Government Oversight said “[u]nfortunately, every day that the bill does not become law means the public is deprived the benefit of disclosures from federal government whistleblowers about fraud, waste and abuses, which could remain ongoing.”  Luckily, for federal employees and taxpayers alike, it appears that the meandering journey the bill has taken is finally coming to an end.  The Senate is expected to pass the bill this November.

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