The Whistleblower Protection Enhancement Act of 2012

Overview and Implementation

How was the WPA “enhanced”?

• 10 Critical Areas were strengthened– Broadened the definition of disclosure– Deters retaliation through strengthened ability to

impose disciplinary action– Allows for “full and fair” relief for victims– Holds agencies accountable for retaliatory inv.– Extends whistleblower protection to TSA

employees

Enhancements continued…

– Promotes scientific integrity– Allows OSC to file friend of the court briefs– Ensure that whistleblower protections supersede

agency Non-Disclosure Agreements (NDAs)– Expands courts to which whistleblower claims can

be brought– Requires creation of Whistleblower Ombudsman

in each OIG

Disclosure Protection - OLD

Old Law EXCLUDED protection if the “whistleblower disclosure”:

1. was made to a supervisor who was the wrongdoer

2. was made during the course of whistleblower’s job duties (auditors, inspectors etc.)

Disclosure Protection – NEW

New Law EXPANDS protection if the “Whistleblower disclosure”:

1. was made to the supervisor

2. was made to a person who participated in the activity that is the subject of the whistleblowing

3. was information previously known

NEW Disclosure Protection Con...

4. without regard to the discloser’s motive

5. even if it was not made in writing

6. if disclosure was made while “off duty”

7. without regard to the passage of time between the wrongdoing and whistleblowing

8. during the normal course of duties

Protected Disclosure

• Does not need to be accurate to be protected• Is protected if the employee reasonably believes

that the information is true• Does not have to go through the chain of command• Whistleblower’s personal motivation does not

negate reasonable belief• Employee or applicant is protected if the employer

mistakenly believes the employee is the whistleblower

Examples of Prohibited Personnel Practice (PPP)

• Retaliate for any of the following:– Exercising an appeal right of any sort

– Testifying or assisting in the above

– Cooperating with or disclosing to OIG or OSC

– Refusing to obey an order that would require someone to violate the law

Non-Disclosure Agreement (NDA)

• Implementing or enforcing a NDA that fails to provide the requisite notification that agency restrictions on disclosures are superseded by statutory whistleblower rights is now a PPP.

What Constitutes Retaliation?

• Taking a Personnel Action

• Failing to take a Personnel Action

• Threatening to take a Personnel Action

Elements of Proof to Show Reprisal

• Individual must show:– It was a protected disclosure– There was a personnel action taken, not taken, or

threatened– That the agency/official had actual or constructive

knowledge of the protected disclosure– Protected disclosure was a contributing factor in

personnel action

How Does the WPEA Strengthen Remedies Against Reprisal?

• OSC’s burden of proof shifts from proving that retaliation was the ONLY reason for taking adverse action against an employee (whistleblower) to the “significant motivating factor” test – which mandates a lesser burden of proof for OSC.

Now, OSC just has to prove that it was one of the main factors for taking adverse action

Monetary Settlement in the WPEA

• The Agency, not OSC, has to pay the legal fees for the supervisor charged with retaliation (if the supervisor is found innocent)

• Allows employees full and fair relief in the way of compensatory damages for their suffering from sustained harassment

• Employees can recover damages or costs associated with an agency “witch hunt”

How do I Report Wrongdoing?

• Report it to:– Your Supervisor or someone in a position to

correct the situation– OIG Hotline– Office of Special Counsel (OSC) who will refer the

wrongdoing to the appropriate agency (USDA, DOD, FDA etc.)

Who is Entitled to Whistleblower Protection

• Current USDA Employees - YES• Prior USDA Employees - YES• USDA Job Applicants - YES

• Contractors – NO• USDA Program Recipients – NO• State Agency Personnel - NO

Do I Have to Give my Name?

• Three identity options when contacting the OIG Hotline:– Anonymous- no name and no contact information

is provided by you to the hotline– Confidential – you provide your name and contact

information to the hotline and it is not divulged outside of OIG

– Permission to Use Name – you provide your name and contact information to the hotline and allow it to be used in the complaint

Am I Entitled to Whistleblower Protection?

• Confidential complainants and complainants who allow their name to be used are entitled to whistleblower protection from reprisal/retaliatory actions.

• Anonymous complainants are not afforded whistleblower protection and cannot be contacted for additional information.

Is it better to Provide my Name as the Complainant?

• This is the complainant’s decision and the OIG Hotline will not advise for or against it.

• What if I remain anonymous and my supervisor knows I made the report and then takes reprisal action against me?

You are not entitled to whistleblower protection if you do not provide your name to the OIG Hotline

What if Reprisal Action is Taken Against Me?

• Report it to OSC• OSC provides a safe channel for whistleblower

disclosures by federal employees, former federal employees, and applicants for federal employment.

• OSC makes a determination whether or not the person is covered and whether or not the action constitutes reprisal

What if I Don’t Know What to do?

• The Whistleblower Ombudsman is charged with educating employees and working with them to:– Explain the process of working with OSC to file a

whistleblower disclosure– Make a confidential communication of

wrongdoing responsibly– Submit a retaliation claim

Contact Information

• USDA Whistleblower Ombudsman– E-mail: OIGombudsman@oig.usda.gov

• USDA HOTLINE: – Phone: 1-800-424-9121; – E-mail: usda.hotline@oig.usda.gov– Fax: 202-690-2474– Mail: USDA-OIG Hotline, P.O. Box 23399, Washington,

DC 20026

Office of Special Counsel Contacts

• Complaints Examining Unit: 800-872-9855 or 202-254-3670

• Disclosure Unit: 800-572-2249 or 202-254-3640

• Mail Address: 1730 M Street, NW (Suite 218), Washington, DC 20036-4505