Hope on the horizon for federal whistleblowers? Addressing the gaps in whistleblower laws

Nine years ago, Congress passed the Whistleblower Protection Enhancement Act (WPEA), closing many loopholes and upgrading whistleblower protections for federal workers. However, while the WPEA made it easier for workers to blow the whistle, the fight for whistleblowers is not over yet: agencies have still found ways to retaliate against and deter federal whistleblowers.

Congressional leaders and news outlets, for instance, have reported gag efforts among federal agencies, otherwise understood as efforts to prevent government employees from communicating with Congress and the public. In one such effort, federal employees under the Obama administration were forced into signing nondisclosure agreements that omitted any mention of the whistleblower exceptions mandated by law. In another, the Department of Health and Human Services (HHS) issued three gag orders between 2017 to 2018, some of which included bans on unapproved staff communication with members of Congress and the media.

The power of the WPEA has been further hindered by the inaction within the Merit Systems Protections Board (MSPB)—a three-person independent, quasi-judicial body, which rules on allegations of prohibited personnel practices and whistleblower retaliation. MSPB has been without a quorum for over three years and, despite 5 nominations since 2019, has been without any members for over a year. As a result, it has been nearly impossible for whistleblowers to effectively appeal decisions issued by the board’s lower-level administrative judges and have their complaints heard. [i] [ii]

The Whistleblower Protection Improvement Act of 2020, introduced in the 116th Congress as H.R. 7935 by Representative Carolyn Maloney—Chair of the House Oversight and Reform Committee—would clarify and enhance protections for federal government whistleblowers. If reintroduced, it could be the key legislation that whistleblowers are looking for.

The bill would amend Title 5 to include protections such as bans on the disclosure of a whistleblower’s identity and any interference with federal workers’ ability to disclose information to Congress. Furthermore, the bill would make federal agencies responsible for attorney fees in appeals in which they are not the prevailing party and expand whistleblower protections to all noncareer appointees in the Senior Executive Service.

The most notable parts of Chair Maloney’s bill are those that grant federal whistleblowers access to federal jury trials if the MSPB does not act on a case within 180 days and institute a ban on agencies launching retaliatory investigations. These additions to whistleblower protections are much needed and particularly important in light of the previously mentioned issues with the MSPB. Moreover, adding a provision against retaliatory investigations helps to dull the power whistleblowers often feel their agency holds over them and may consequently inspire more whistleblowers to come forward.

Yet, as with many pieces of legislation, The Whistleblower Protection Improvement Act has its shortcomings—the primary one being that it is not retroactive. Therefore, previous whistleblowers who have already suffered from retaliatory investigations have no remedy, including the many whistleblowers targeted by the Trump administration. In fact, and perhaps unsurprisingly, Representative Maloney stated that this bill was a direct response to the Trump administration, who wrongly “engaged in systematic attacks” against whistleblowers and officials deemed disloyal to President Trump.

There are too many sanctioned attacks against whistleblowers and not enough protections or recourses for them. This is underscored by a September 2020 Marist Poll, which found that 86% of Americans believe there should be stronger legal protections for federal whistleblowers—a number that rises to 94% for those who identify as Democrats and holds steady at 78% for Republicans, showing that support for these protections transcends partisan politics. Whistleblower protections should be strengthened and The Whistleblower Protection Improvement Act would be the right start.

[i] For detail see: Louis C. LaBrecque. “Whistleblowers May Suffer Without Appeals Board, Last Member Says.” (February 28, 2019). Available at: https://news.bloomberglaw.com/daily-labor-report/whistleblowers-may-suffer-without-appeals-board-last-member-says

[ii] For detail see: Eric Katz. “New Trump Administration Strategy Leaves Fired Feds Seeking Recourse in Indefinite Purgatory.” (September 2, 2020). Available at: https://www.govexec.com/workforce/2020/09/new-trump-administration-strategy-leaves-fired-feds-seeking-recourse-indefinite-purgatory/168201/