A. In 1989 Congress amended the Civil Service Reform Act of 1978 with the Whistleblower Protection Act of 1989 (5 U.S.C. Secs. 1201 et seq.)
B. The Act substantially strengthens the protection for whistleblowers in the Federal government:
1. the employee now has an easier time to file an action before the Merit Systems Protection Board (MSPB),
2. alters the burden of proof for employees to prevail in reprisal claims (see II.B. below),
3. the employee now has a right to obtain attorneys fees and costs associated with litigation, and
4. the Act makes the Office of Special Counsel (OSC) independent of the MSPB.
II. INDIVIDUAL ACTIONS AND BURDEN OF PROOF
A. Employees (former employees and applicants) who believe that they have suffered reprisals for disclosing matters of waste, fraud, management, or abuse of management discretion, must first seek the assistance of OSC before bringing an individual action.
1. If OSC notifies employee that its investigation is over and that the OSC will not act, employee has 60 days to file with MSPB.
2. If requested by the OSC, the MSPB will grant a 45 day stay (stop) of a personnel action, such as a removal.
3. If the employee receives no notice from OSC within 120 days of filing a complaint, the employee then may file an action with the MSPB.
B. To establish a case of whistleblowing, the employee (or OSC acting for the employee) must now prove (by a preponderance of the evidence) only that the whistleblowing was a factor in the personnel action taken.
1. No longer must the employee prove retaliatory motives of the agency or that the whistleblowing was a substantial, motivating or predominant factor.
2. If a prima facie case is established, the agency must prove (by clear and convincing evidence) that it would have taken the same personnel action in the absence of the whistleblowing.
3. Clear and convincing evidence standard has become extremely difficult to prove in many cases and often is as difficult to prove as the "beyond a reasonable doubt standard" in criminal cases.
III. INCREASED EMPLOYEE PROTECTIONS
A. Mere harassment and threats, even without any formally proposed personnel action, can constitute a prohibited personnel practice under 5 U.S.C. Sec. 2302(b)(9) "triggering" the protection of the Act.
B. The Act protects employees in their right to refuse orders that require violation of the law. This protection is different from prior law that required employees to follow orders and protest after the fact
C. The law also provides stronger interim relief in that employees who prevail at the initial evidentiary hearing must be returned to the job (or at least the payroll) during the appeal process.
D. The employees who win their cases receive preference in transfers to new jobs.
IV. CHANGES IN OSC
A. OSC has been made "independent arm" of the MSPB.
B. OSC must adhere to certain guidelines in handling cases in which it must:
1. provide status reports to employees seeking help,
2. refrain from leaking the employee's evidence to the agency without employee consent,
3. refrain from settling a case without employee's comments,
4. explain its decision in closing a case,
5. not intervene against an employee in any administrative hearing or independent action unless invited by the employee.
V. INDIVIDUAL LIABILITY
A. An individual who has committed a prohibited personnel practice may be disciplined.
1. OSC files written complaint with MSPB.
2. Employee is entitled to a hearing.
3. MSPB may impose:
b. reduction in grade,
c. debarment from Federal service for up to 5 years,
e. reprimand, or
f. civil penalty not to exceed $1,000.
4. Employee may appeal adverse decision to U.S. Court of Appeals.
B. OSC may recommend disciplinary action to be taken against a member of the Armed Forces to the head of his/her agency.
Authority: 5 U.S.C. Secs. 1201 et seq.