Executive Summary: On November 14, 2012, the Senate passed the Whistleblower Protection Enhancement Act (WPEA) of 2012. The House previously approved the Act, and President Obama is expected to sign it into law. The Act strengthens the Whistleblower Protection Act and provides more protection to federal employees who disclose certain types of information, including fraud, waste and abuse in federal agencies.
Clarification of Types of Disclosures Protected
In response to administrative agency and court decisions narrowing the definition of protected disclosures, the WPEA clarifies that disclosures are not excluded from protection because:
the disclosure was made to a supervisor or to a person who participated in the wrongdoing;
the disclosure revealed information that had been previously disclosed;
of the employee's or applicant's motive for making the disclosure;
the disclosure was not made in writing;
the disclosure was made while the employee was off duty; or
of the amount of time which has passed since the occurrence of the events described in the disclosure.
Additionally, the WPEA provides that a disclosure is not excluded from protection even if it is made during the normal course of an employee's duties, as long as the employee can show that he or she was subjected to retaliation because of the disclosure.
Disclosures Concerning Policy Decisions
The WPEA also states that a protected disclosure does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant making the disclosure reasonably believes that the disclosure evidences:
Any 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.
Standard for Determining Reasonable Belief
Under the WPEA, a determination of whether the employee/applicant making the complaint reasonably believed the conduct complained of was a violation of a law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety must be made by determining whether a disinterested observer with knowledge of the facts known by or available to the employee/applicant could reasonably reach such a conclusion.
Temporary Expansion of Jurisdiction over Appeals of Whistleblower Decisions
Additionally, the WPEA suspends the sole jurisdiction of the Federal Appeals Court over federal whistleblower cases for two years. This means that, for a period of two years, appeals of federal whistleblower decisions can be filed in any federal court of appeals.
Clarification that Agency Nondisclosure Policies Do Not Override Whistleblower Protections
The Act also requires any nondisclosure policy, form or agreement (including one contained on an agency web site) to include the following statement:
These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.
Other Provisions of the WPEA:
Exclude certain intelligence agencies from the Act's protections
Include Transportation Security Administration employees, including federal airport screeners, within coverage of the Act;
Protect employees who disclose censorship related to research, analysis or technical information.
Employers' Bottom Line:
While the WPEA applies only to federal employees, it reflects a trend of expanding whistleblower protections for employees. For example, legislation that would expand protections for whistleblowers in the private sector was introduced in the House of Representatives in September 2012. Additionally, recent decisions by the DOL's Administrative Review Board have relaxed the pleading standard in Sarbanes-Oxley whistleblower claims and expanded the definition of protected activity under that law.
If you have any questions regarding the WPEA or other labor or employment related issues, please contact the FordHarrison attorney with whom you usually work.