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Responding to Employees Who Allege Violations of Whistleblower Protections
Know Your Rights When Reporting Wrongs
Whistleblower Protection Enhancement Act of 2012 (WPEA)
The Whistleblower Protection Act (WPA) prohibits taking or not taking a personnel action (or threatening either) with respect to any employee or applicant because of any disclosure of information by an employee or applicant which he or she reasonably believes evidences a 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, unless the employee or applicant is prohibited from making the disclosure due to national security reasons.
On November 27, 2012, President Obama signed the Whistleblower Protection Enhancement Act (WPEA). Following is a summary of the changes that affect FHFA employees, supervisors, and managers.
Key changes under WPEA: The WPEA provides that a disclosure does not lose its protected status just because:
It was part of the employee’s duties to make such disclosures; or
It was made to a person involved in the alleged wrongdoing; or
The disclosure consisted of information previously revealed; or
The disclosure was not made in writing; or
The motive of the person making the disclosure was suspect; or
The disclosure was made by an employee while off-duty; or
Too much time passed between the occurrence of the events disclosed and the time of disclosure.
Censorship of Research or Technical Information
The WPEA protects any disclosure of information by an employee or applicant that he or she reasonably believes is evidence of censorship related to research, analysis or technical information and that such censorship is or will cause a 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.
Whistleblower Protection Coordinator
The WPEA amended the Inspector General Act to require that each Inspector General designate a Whistleblower Protection Ombudsman who shall educate agency employees about prohibitions on retaliation for protected disclosures and the rights and remedies against retaliation for protected disclosures. In 2017, the Whistleblower Protection Ombudsman title was changed to the Whistleblower Protection Coordinator by act of Congress. You can reach FHFA-OIG’s Whistleblower Protection Coordinator at 800-793-7724 or wpc@fhfaoig.gov.
New Remedies
The WPEA authorizes compensatory damages to those employees or applicants who suffer a prohibited personnel practice. Previously, remedies included only reimbursement for out of pocket expenses and equitable relief such as reinstatement or rescinding a suspension. In addition, those employees who have been subjected to a retaliatory investigation may also recover fees, costs or damages related to the investigation.
Employees who engage in whistleblower retaliation may be subject to discipline from the Merit System Protection Board, if the Office of Special Counsel (OSC) can show that an employee’s whistleblowing was a “significant motivating factor” in an agency’s decision to take adverse action against an employee. The new standard is lower than previously required. This part of the WPEA places the liability for attorneys’ fees in a disciplinary action on the agency, where previously it had been placed on the OSC.
Non-Disclosure Agreements
The Whistleblower Protection Act requires that certain kinds of non-disclosure agreements that require employees not to talk about their work, such as those signed by employees with top secret security clearances, contain the following language:
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 or the Office of Special Counsel 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. 5 U.S.C. §§ 7211 and 2302(b)(8); 10 U.S.C. § 1034; 50 U.S.C. §§ 3121 et seq. and 783(b); 18 U.S.C. §§ 641, 793, 794, 798 and 952; E.O. 13526.
You can find more information about whistleblowing at www.OSC.gov.
Information
Contact Janice A. Kullman in the Office of General Counsel regarding this communication at Janice.Kullman@fhfa.gov or (202) 573-0845.
For additional information, or to make a protected disclosure, go to the Office of Special Counsel Website at: www.osc.gov. You may also make protected disclosures to the FHFA Office of Inspector General at www.fhfaoig.gov or the OIG hotline at 1-800-793-7724.
Please note a disclosure of waste, fraud, or abuse that includes information which is classified OR which is otherwise prohibited by law from release is not a protected disclosure under the whistleblower laws unless the disclosure is made to an OIG, the U.S. Office of Special Counsel, or to Congress, even if you reasonably believe the information is evidence of waste, fraud, or abuse. Please also be aware that disclosures of classified information may not be transmitted using the FHFA-OIG’s unclassified hotline. For more information on how to properly provide classified information to the FHFA-OIG, please contact the FHFA-OIG’s hotline at 1-800-793-7724 or the FHFA-OIG Whistleblower Protection Coordinator at wpc@fhfaoig.gov.
Page Last Updated: November 8, 2024