Prohibited Personnel Practice 8: Whistleblower Protection

The eighth prohibited personnel practice (PPP) is a crucial element of the Whistleblower Protection Act (WPA), codified at 5 U.S.C. § 2302(b)(8). This practice protects federal employees and applicants from retaliation for making protected disclosures, often referred to as "whistleblower disclosures." [1] The purpose of this PPP is to safeguard individuals who report wrongdoing and to eliminate government misconduct by ensuring that employees do not face adverse consequences for such disclosures. [1]

According to www.iAsk.Ai - Ask AI:

This PPP is designed to eliminate government wrongdoing by ensuring that employees or applicants should not suffer adverse consequences for making such disclosures.

The WPA defines a "protected disclosure" as the disclosure of information that an employee reasonably believes evidences a violation of any 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. [1] It's important to note that vague or conclusory allegations of wrongdoing are generally not considered protected disclosures. [1]

There are two primary avenues for raising a claim of a violation of section 2302(b)(8) with the Merit Systems Protection Board (MSPB): as an affirmative defense in an otherwise appealable action or in an Individual Right of Action (IRA) appeal. [1]

To establish a prima facie case of retaliation in the context of an otherwise appealable action, an appellant must demonstrate by preponderant evidence that they made a protected disclosure and that the disclosure was a contributing factor in a personnel action against them. [1] A "personnel action" is broadly defined and includes actions such as appointments, promotions, adverse actions, transfers, performance evaluations, and decisions concerning pay or benefits. [1] If the appellant establishes a prima facie case, the agency then has the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. [1]

In the context of an IRA appeal, the MSPB has jurisdiction when an employee, former employee, or applicant for federal employment demonstrates that they have exhausted administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations that they engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action. [1]

The remedies available if an agency is found to have violated section 2302(b)(8) can include placing the individual in the position they would have been in had the prohibited personnel practice not occurred, back pay and related benefits, medical costs incurred, travel expenses, other reasonable and foreseeable consequential damages, and attorney fees and costs. [1]

The Office of Inspector General (OIG) also plays a role in whistleblower protection. Federal employees can submit complaints to the OIG, which will review them and determine whether to investigate or refer them to the OSC or elsewhere. [3] The OIG is prohibited from disclosing the identity of an employee who makes a protected disclosure unless the employee consents, disclosure is unavoidable, or a court order compels it. [3]

The Whistleblower Protection Enhancement Act of 2012 (WPEA) further strengthened whistleblower protections. The WPEA prohibits agencies from enforcing nondisclosure agreements that do not contain a specific statement clarifying that their provisions are consistent with and do not supersede, conflict with, or otherwise alter employee obligations, rights, or liabilities created by existing statute or Executive order relating to whistleblower protection. [4]

The key elements of a violation of 5 U.S.C. § 2302(b)(8) are: a protected disclosure, a personnel action, and a causal connection between the disclosure and the personnel action. [1]

Answer Provided by iAsk.ai – Ask AI.