It seems only fair that the government should provide protection for individuals who report illegal conduct, especially when there is a public interest in doing so. Indeed, that is the purpose of the Whistleblower Protection Act (WPA), as well as specific provisions which are included in various statutes. Whistleblowers must not be retaliated against for telling the truth and uncovering illegal conduct that might otherwise go unchecked. But how effective are these protections?
Definition of "whistleblowing"
Employees are typically protected when they have engaged in either internal or external reporting or "whistleblowing." Internal whistleblowing occurs when the misconduct is reported to someone within the organization. Whereas, external whistleblowing involves reporting misconduct to someone outside of the organization; typically the media or a regulatory agency of some kind. Both private employees and federal employees are entitled to these protections, as long as certain conditions are met.
Basic whistleblower protections
As with other anti-retaliation statutes, the Whistleblower Protection Act (as well as other whistleblower statutes) prohibits covered employers from discriminating against these employees because they engaged in protected activity, which means reporting wrongdoing that has occurred within the company. Employees are also protected if they initiate, testify, or assist in any proceeding under a whistleblower statute.
Are federal employees protected under the WPA?
One of the biggest problems that whistleblowers face is meeting all of the requirements of the Whistleblower Protection Act in order to actually enjoy its protection. A recent case that came before the United States Supreme Court shows how insurmountable these hurdles may sometimes be. The Court heard oral argument in Department of Homeland Security v. MacLean on November 4, 2014, and a decision has yet to be handed down.
MacLean was employed as a federal air marshal, and was terminated for sharing with a reporter "sensitive security information." Specifically, MacLean disclosed TSA's plans to remove air marshals from long distance flights. The question now is whether his statement is protected.
Why so many hurdles?
The problem is, federal employees are not allowed to bring First Amendment claims, as private employees may be. Instead, federal employees must assert their rights through either the Civil Service Reform Act, or the Whistleblower Protection Act. This means that, in MacLean's case, the Supreme Court must determine, not whether his speech was of public concern, but whether it was "specifically prohibited by law" under the WPA. If it was prohibited, then MacLean has lost his protection as a whistleblower.
The end result is that federal employees are often denied relief, even when it could be argued that their First Amendment rights have been violated. They are required to jump through more hoops than most other employees, which decreases their chances of obtaining any relief under the statutes that are meant to protect them.
If you feel you have been the victim of retaliation, or if you have any questions regarding your rights as a whistleblower, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.