Whistleblower Protection Act (WPA)
The Whistleblower Protection Act (WPA) protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe evidences:
- a violation of law, rule, or regulation;
- gross mismanagement;
- a gross waste of funds;
- an abuse of authority;
- or a substantial and specific danger to public health or safety.
Under the WPA, certain federal employees may not take or fail to take, or threaten to take or fail to take; any personnel action against an employee or applicant for employment because of the employee or applicant’s protected whistleblowing. See 5 U.S.C. § 2302(b)(8).
Whistleblower Protection Enhancement Act (WPEA)
In 2012 Congress passed the WPEA into law to strengthen protections for Federal employees who report fraud, waste, and abuse. The WPEA clarifies the scope of protected disclosures and establishes that the disclosure does not lose protection because:
- the disclosure made to someone, including a supervisor, who participated in the wrongdoing disclosed;
- the wrongdoing reported has previously disclosed;
- of the employee’s motive for reporting the wrongdoing;
- the disclosure made while the employee was off duty;
- the disclosure was made during the employee’s normal course of duty; if the employee can show that the personnel action was taken in reprisal for the disclosure; or
- the amount of time which has passed since the occurrence of the events described in the disclosure.
- The WPEA protects disclosures that an employee reasonably believes are evidence of censorship related to research; analysis, or technical information that causes, or will cause, a gross government waste or gross mismanagement; an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law. It expands the penalties imposed for violating whistleblower protections and establishes the position of Whistleblower Protection Ombudsman.
Enhancement of Contractor Protection from Reprisal (41 U.S.C. § 4712)
The National Defense Authorization Act of 2013 (NDAA); enacted a pilot program making it illegal for an employee of a Federal contractor, subcontractor, grantee, or subgrantee to be discharged, demoted; or otherwise discriminated against for making a protected whistleblower disclosure. In 2016, Congress amended the program to make those protections permanent.
Whistleblower Ombudsman
Pursuant to the Whistleblower Protection Enhancement Act of 2012; the CPSC established a Whistleblower Ombudsman to educate agency employees about prohibitions on retaliation for whistleblowing, as well as employees’ rights and remedies if subjected to retaliation for making a protected disclosure.
The Ombudsman is prohibited by law from acting as a Whistleblower’s representative, agent, or advocate.[1]
NOTICE RELATED TO NON-DISCLOSURE AGREEMENTS
The Whistleblower Protection Enhancement Act of 2012 prohibits agencies from issuing or enforcing nondisclosure agreements, policies, or forms against current or former employees that do not contain the following statement:
Sp, 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; firstly classified information; secondly communications to Congress; thirdly the reporting to an Inspector General 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.
Hence, the controlling Executive Orders and statutory provisions in the event of any conflict with a non-disclosure policy, form, or agreement include:
- Firstly, the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8), as amended (governing disclosures of violations of law, waste, fraud, abuse or public health or safety threats);
- Secondly, 5 U.S.C. § 7211 (governing disclosures to Congress);
- 10 U.S.C. § 1034, as amended by the Military Whistleblower Protection Act (governing disclosures to Congress by members of the military);
- The Intelligence Identities Protection Act of 1982, 50 U.S.C. § 421, et seq., (governing disclosures that could expose confidential government agents);
- The Subversive Activities Act of 1950, 50 U.S.C. § 783(b);
- The statutes which protect against disclosures that may compromise the national security, including sections 641, 793, 794, 798, and 952, of title 18, United States Code; and
- Executive Order No. 13526.[2]
CONCLUSION
Pursuant to the Whistleblower Protection Enhancement Act of 2012, the following statement applies to non-disclosure policies, forms, or agreements of the federal government with current or former employees, including those in effect before the Act’s effective date of December 27, 2012:
“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 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. So, the definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this agreement and are controlling.”[3]
[1] https://www.cpsc.gov/About-CPSC/Inspector-General/Whistleblower-Protection-Act-WPA
[2] https://www.ftc.gov/about-ftc/office-inspector-general/whistleblower-protection
[3] https://oig.justice.gov/hotline/whistleblower-protection
