Today the U.S. House of Representative enacted the Whistleblower Protection Enhancement Act (WPEA). The U.S. Senate will likely enact it through unanimous consent in the near future. Below is a summary of the legislation.
The Employment Law Group® (TELG) supports the passage of the Whistleblower Protection Enhancement Act (WPEA), S. 743 / H.R. 3289. This legislation will help employee-side counsel protect federal employees from unlawful retaliation. The WPEA strengthens protections for employees who disclose waste, fraud, and abuse in 10 critical areas.
- Protecting all lawful disclosures of waste, fraud, and abuse. The WPEA addresses court decisions that have narrowed the scope of protections Congress intended. For example, employees now are not protected for blowing the whistle in the course of their job duties. Final passage of the law would eliminate protections for some of the most important positions in government. Federal auditors, safety inspectors, and other employees with health and safety roles should be encouraged to perform their jobs diligently and with the public interest in mind. An efficient whistleblower law encourages employees to work within the chain of command to resolve problems early and effectively.
- Deterring retaliation through disciplinary actions. The WPEA also furthers congressional intent by restoring the government’s ability to seek disciplinary actions against employees who engage in unlawful retaliation. The WPEA establishes a “significance motivating factor” test, which will allow government agencies to effectively enforce the whistleblower law and protect employees by deterring wrongdoing.
- Providing full and fair relief for victims of unlawful retaliation. The WPEA strengthens the remedies for whistleblowers who prevail in their retaliation claims. The legislation provides for compensatory damages, which will allow employee’s counsel to seek full and fair relief for employees who suffer from sustained harassment in addition to adverse personnel actions. The need for this reform is highlighted by recent whistleblower cases at the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Law enforcement officers and other employees may believe their careers have been stifled because of their protected whistleblowing. In such cases, correcting a personnel record may be insufficient to make an employee whole, and the availability of compensatory damages is a better remedy for combating the stigma that too often is associated with conscientious whistleblowing.
- Holding agencies accountable for retaliatory investigations. The WPEA further strengthens the remedies available for whistleblowers and provides a strong deterrent to retaliatory investigations by allowing employees to recover damages or costs associated with an agency “witch hunt.”
- Extending whistleblower protections to all TSA employees. The WPEA covers a loophole in existing law that exempts Transportation Security Officers from the whistleblower protections afforded to other employees. The 50,000+ employees at the nation’s airports should feel confident that they will be protected from retaliation for speaking out against threats to aviation security.
- Promoting scientific integrity in government operations. The WPEA explicitly protects government scientists and other professionals for disclosures related to the integrity of the scientific process.
- Allowing the prosecutor to shape the law. The WPEA would give the Office of Special Counsel greater authority to shape the whistleblower law by allowing the OSC to file friend of the court briefs in important cases.
- Ensuring that whistleblower protections supersede agency non-disclosure agreements. The WPEA makes it a prohibited personnel practice for an agency to impose a non-disclosure agreement on an employee if the agreement does not explicitly state that the employee’s rights under the whistleblower law supersede the terms of the agreement. This provision is necessary to inform employees of their statutory rights and encourage lawful disclosures of misconduct and waste.
- Enhancing diversity in appellate review of whistleblower claims. The WPEA established a two-year period in which whistleblower protection claims may be heard by the regional appellate courts in addition to the U.S. Court of Appeals for the Federal Circuit. This will improve the development of the law.
- Informing employees of their rights and protections. The WPEA requires each agency Inspector General to designate a Whistleblower Protection Ombudsman.
Collectively, these reforms will make the Whistleblower Protection Enhancement Act stronger than at any point in its history, and provide employee-side attorneys with all the tools they needs to effectively fulfill their mission to protect employees from unlawful retaliation.
The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.