Whistleblowers who work for the federal government recently received greater protection under federal law. These additional protections are significant and close prior gaps in the protections afforded by previous statutes and related case law. Even more significant is the possibility that these protections may portend additional measures by Congress designed to empower corporate insiders who make whistleblower disclosures and who—together with federal employee whistleblowers—provide an increasingly powerful tool in the hands of federal prosecutors.
The Whistleblower Protection Enhancement Act
On December 27, 2012, protection for federal-employee whistleblowers expanded, as the Whistleblower Protection Enhancement Act (“WPEA”) took effect. By extending protection to federal-employee whistleblowers who make disclosures in the course of their normal duties and suffer retaliation, the WPEA was drafted to supersede a United States Supreme Court decision that limited the free-speech rights of government employees within the workplace. Additionally, the WPEA closes actual or perceived loopholes in the Whistleblower Protection Act of 1989. In particular, the WPEA provides protection to federal-employee whistleblowers who (1) make disclosures to individuals they reasonably believe participated in illegal acts; (2) were not the first to disclose misconduct; (3) make oral—rather than written—disclosures; (4) make disclosures while off duty; or (5) delay in making their disclosures until long after the alleged fraudulent, wasteful, or abusive activity has occurred.
Significantly, the WPEA also provides that the protections apply, regardless of the motives of the whistleblower. Thus, under the WPEA, disclosures made out of spite, for personal gain, or because of other unsavory motives presumably may not form the basis for retaliation. For example, a federal employee making a disclosure purely in an effort to obtain a supervisor’s job would appear to be protected, even though the disclosure is motivated solely by personal gain. A broad interpretation of the WPEA may provide a similar result with respect to disclosures done only for monetary gain, personal publicity, or collusion with qui tam relators. In tandem with the WPEA’s specific instruction that a delay in disclosing does not remove whistleblower protection, this protection appears to mean that a federal employee’s knowledge of fraud, waste, or abuse can be “kept in the back pocket” for use at an appropriate time to gain leverage or another personal benefit, without fear of reprisal.
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