Whistleblower Protection Enhancement Act Signed Into Law by President Obama

December 1, 2012

The Whistleblower Protection Enhancement Act (“WPEA”) was signed into law by President Obama on Tuesday, marking a significant step forward in a decade-long struggle by federal workers to gain meaningful whistleblower protections.  The WPEA will close loopholes in the current law and bolster protections for federal workers whose supervisors, all too often, have able retaliate against federal employees with impunity.

According to a White House press release, the bill amends whistleblower protections for federal employees by:  clarifying the scope of protected disclosures; tightening requirements for non-disclosure agreements; expanding the penalties for violating whistleblower protections; and establishing athe office of Whistleblower Protection Ombudsmen in certain agencies.  The Project on Government Oversight added that the WPEA will ensure that a federal employee is now protected even if the employee: a) is not the first person to disclose the misconduct; b) blows the whistle within the course of her job duties; c) makes the disclosure to a supervisor rather than an outside agency; d) merely discloses the consequences of a policy decision; or e) does not have undeniable proof of government misconduct.

The WPEA will have a number of other positive effects as well.  As we wrote when the bill passed the House in early October, the bill:

  • closes loopholes removing employee protections for some of the most common whistleblowing scenarios, including
    • loopholes which permitted agencies to only provide protections for the first employee to report misconduct, and
    • loopholes allowing agencies to retaliate against reports of misconduct if such reports fell within an employees’ job duties;
  • grants protection to employees for challenging consequences of government policy decisions;
  • changes the standard that an employee must meet from requiring that an employee must have “undeniable, uncontestable, or incontrovertible” proof of misconduct to be protected so that an employee now needs a “reasonable belief” of misconduct;
  • protects government scientists who challenge censorship;
  • requires a statement in the Appropriations bill notifying employees that agency restrictions on disclosures are superseded by their statutorily protected rights;
  • allows employees to appeal adverse decisions by the Merit Systems Protection Board (“MSPB”) outside of the Federal Circuit Court of Appeals, restoring all-Circuit review for a two year experiment;
  • establishes whistleblower protections for Transportation Security Administration employees; and
  • provides compensatory damages for whistleblowers that prevail after an administrative hearing.

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