Whistleblower Reprisals Up, 1 in 4 Fed Employees Just Take It: MSPB

By Joanna S. Friedman

According to a recently released U.S. Merit Systems Protection Board (MSPB) study, more federal employees claim they have been subjected to or threatened with reprisal for reporting wrongdoing of management in the federal government.

Further, the study illustrates how tolerance for whistleblowing within federal agencies has taken a turn for the worst with 21.6 percent of federal employees reporting they have experienced reprisal for disclosing wrongdoing, and 13.3 percent of employees saying they were threatened with retaliation for making such disclosures. The last time the MSPB surveyed federal employees on these same issues, employees that reported experiencing reprisal and/or being threatened with reprisal were 18.7 percent and 12.2 percent, respectively.

Waste caused by poorly managed programs was the most common type of wrongdoing, with 38.9 percent of survey respondents saying that they observed such waste within the past 12 months. For those employees who blew the whistle on unlawful conduct and/or wrongdoing, more than two-thirds report they were retaliated against by co-workers and/or supervisors openly shunning them in workplace. Other common forms of retaliation for whistleblowing include management denying performance related cash awards, and being assigned less work duties, or even being stripped of work responsibilities.

What is alarming is that more than a quarter of the federal employees who reported whistleblowing in this study said they did not take any action in response to the retaliatory actions and/or threats made against them by management. The federal government’s mission to eradicate wrongdoing in the workplace is significantly limited so long as whistleblowers tolerate reprisal.

It is clear that the mere possibility of reprisal has a chilling effect on federal employees, with 37 percent of them saying their decision to blow the whistle is affected by the fear that by making such disclosures, disciplinary actions will result through suspension, demotion or removal. In addition, thirty-six percent of these employees worry that whistleblowing will negatively impact their annual performance appraisals.

What federal employees need to know:

• Most whistleblowers in the federal civil service are protected against retaliation so long as they disclose through proper channels any violation of a law, rule or regulation, gross mismanagement or waste of funds, authoritative abuse, or a substantial and specific public safety or health danger.
• Disclosures can be made to the Office of Special Counsel (OSC), an agency’s inspector general, a person appointed by an agency head to receive such information or to a management official who is outside the supervisory chain of command for the employee.
• Under 5 U.S.C §2302(b)(8), federal agencies commit a prohibited personnel practice (PPP) when they take or do not take, or threaten to take or not take a personnel action against an employee who makes such disclosures.
• When whistleblower retaliation comes in the form of personnel practices such as suspension, pay grade reduction, furlough, or removal, the employee can directly appeal to the MSPB. Such appeals must be filed within 30 days of the action’s effective date or an agency decision.
• When a retaliatory act is not otherwise appealable to the MSPB, the employee can file a complaint with the Office of Special Counsel (OSC). Subsequently, an employee can file an individual right of action (IRA) with the MSPB if OSC fails to pursue corrective action within 120 days from the date the employee filed an OSC complaint.

The whistleblower disclosure process is complex; therefore, federal employees interested in revealing wrongdoing should contact a federal employment lawyer who can ensure their rights are protected if and when management attempts to retaliate against the employee for making such disclosures.

Joanna S. Friedman is partner with Tully Rinckey PLLC. She concentrates her practice in federal sector employment and labor law. She can be reached at jfriedman@fedattorney.com. To schedule a meeting with one of Tully Rinckey PLLC’s federal employment law attorneys call 202-787-1900.