Whistleblowing is a courageous act that involves exposing misconduct, fraud, or illegal activities within an organization. Reporting misconduct can often come at great personal risk, as federal employees who take this brave step may face retaliation from their employers. In this blog, we provide examples of retaliatory actions and what to do should you face retaliation.
What is Retaliation?
Retaliation refers to any adverse action taken by an employer against an employee for engaging in legally protected activities, such as whistleblowing. Under 5 U.S.C. Section 2302(b)(8), federal employees, with the authorization to take, direct others to take, recommend, or approve any personnel action, cannot take, fail to take, or threaten to take action against an employee because of protected whistleblowing.
Examples of Retaliation
Here are some scenarios that exemplify whistleblower retaliation:
A case of an unfair performance review. John is a senior analyst at the Department of Defense. He stumbles upon a procurement fraud within his department, where contracts are being awarded to vendors offering kickbacks. John reports this fraud and later begins to notice that his superiors are treating him differently. His work, which was always praised before, is now constantly criticized. At the end of the year, he receives a poor performance review, jeopardizing his chances for promotion and potentially his job itself.
A case of the sudden transfer. Sarah, an environmental scientist at the Environmental Protection Agency (EPA), discovers that a large corporation has been falsifying emission reports, thereby violating federal environmental laws. She reports her findings, and soon after, Sarah is suddenly transferred to a less significant role in a remote location, far from her family. The transfer appears punitive and unrelated to the agency's needs or her skills.
A case of isolation and exclusion. Mike, a cybersecurity specialist at the Department of Homeland Security, uncovers a security loophole that could potentially expose sensitive data to hackers. Following his disclosure, Mike finds himself excluded from important meetings and decision-making processes. His colleagues start avoiding him, and he feels isolated at work.
Retaliation can also include:
Being treated hostilely by peers and/or superiors
Facing verbal abuse from others at work
Being passed over for promotions or other opportunities (for inexplicable reasons)
Being sabotaged when trying to obtain new employment (i.e. blacklisting)
Being fired or demoted
Being denied owed vacation time
Whistleblower Protections for Federal Employees
Fortunately, federal whistleblowers are not without protection. The Whistleblower Protection Enhancement Act (WPEA) protects federal employees who disclose evidence of abuse, fraud, or waste and prohibits retaliation against such whistleblowers. The Merit Systems Protection Board (MSPB) also provides an avenue for whistleblowers facing retaliation to appeal adverse actions.
Should you face retaliation at work, you can seek legal recourse by filing a complaint with the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), or seeking an appeal to adverse action with the MSPPB. You should consult with an experienced federal whistleblower attorney.
Read our blog, “Federal Protections for Whistleblowers,” to learn more about the laws that protect against retaliation.
Who Qualifies as a Protected Whistleblower?
To be considered a whistleblower, a person cannot simply disclose a mistake or error made by a co-worker. They must disclose information that they believe proves that one of the following occurred:
Gross mismanagement or waste of funds.
Abuse of authority
Violations of law, rules, or regulations
A public health or safety risk
Censorship of scientific research that also falls under one of the aforementioned umbrellas of fraud, illegality, or misconduct
What to Do If You Are Facing Whistleblower Retaliation
If you believe you are being retaliated against, you should take the following steps:
Document all instances of retaliation. Be sure to meticulously document every instance of retaliatory acts. You should note what action was taken against you, the date, time, and location of the occurrence, the names of those involved and those who witnessed the act, and a description of the event.
Preserve physical and digital evidence. The burden of proof is on the claimant. Thus, you should retain any physical or digital evidence that supports your claim of retaliation. This can include emails, memos, performance reviews, disciplinary actions, or any other documentation that shows a change in treatment after your whistleblowing activity. Ensure to keep these documents in a safe place outside the workplace, such as at home or in personal online storage, and do not violate any laws or policies to collect or preserve evidence. It is also important that you continue to collect evidence even after filing a claim, as this continued documentation can bolster your case.
Consult with legal counsel. An attorney can provide advice tailored to your situation, help you understand your rights, and guide you through the legal process.
Write and file a complaint. With the help of your attorney, you should draft a complaint that outlines the specifics of the retaliation faced with evidence to support the claim and the impact the retaliation has had on you. You should then file the complaint with OSC (or the relevant agency).
Aggressive Advocacy for Those Facing Retaliation
The Law Firm of John P. Mahoney, Esq., Attorneys at Law, PLLC represents federal employee clients worldwide in whistleblower retaliation cases. Our federal employee whistleblower attorneys can review your claim, address your concerns, and discuss what options you have to protect yourself and your career.
Contact our team online or via phone (202) 350-3881 to discuss your concerns or retain our services today.
