of the Whistleblower Protection Act is to help people bring important and damaging information to light, the whistleblower protections take a very broad approach as to who is considered an “employee” of the federal government. It does not just cover actual, current healthcare workers who are in a standard employment relationship with a federal healthcare agency. Instead, it also includes:Former employeesProspective employeesEmployees on probationary termsJob applicantsTemporary employees under a federal contractWhile independent contractors may not benefit from the protections of the Act, they are also less likely to suffer the sorts of adverse employment actions that employees can face.Even Retaliation That Falls Short of Termination is ProhibitedSimilar to the Military Whistleblower Protection Act, federal employees in the healthcare field who blow the whistle on misconduct are protected from workplace retaliation. The Act refers to these acts of retaliation as “personnel actions” (5 U.S.C. § 2302(b)), and it prohibits them even if they are merely threatened against a whistleblower. Personnel actions that would be beneficial to the whistleblower, but are withheld due to his or her whistleblowing activities, are also forbidden by the Act.Under 5 U.S.C. § 2302(a)(2)(A), personnel actions include:PromotionsAppointmentsDisciplinary or correction actions, up to and including suspensions and job terminationsTransfers or reassignmentsReinstatementsPerformance evaluationsAny other significant change in duties, responsibilities, working conditions, pay, or benefitsImportantly, though, these personnel actions must be made in relation to your whistleblowing activities. It is up to you to prove to a designated agency official or other law enforcement agency that they were.The Act Protects Blowing the Whistle on All Kinds of MisconductThe information that you have uncovered does not necessarily have to indicate that laws are being broken for the Act’s protections to apply. Unlike some other wh

While the Board held that an appellant need not meet the Nassar “but for” causation standard to prove a violation of 42 U.S.C. § 2000e-16 (and instead can prevail by showing that discrimination was a motivating factor), the appellant ultimately must show that the prohibited personnel practice was the “but for” cause of the action, i.e., the agency would not have taken the same action in the absence of the discriminatory or retaliatory motive.Applying the Mt. Healthy ­burden-shifting framework, the Board articulates the appellant’s burden as follows: In sum, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). In making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe, either alone or in combination.

The decisions of the collaborating agencies reflect the protected status of sexual orientation and gender identity. On August 28, 2014, the OSC found that an agency had engaged in a prohibited personnel practice as defined under 5 U.S.C. 2302(b)(10) (discrimination based on conduct not adverse to work performance), and that the agency likely engaged in a prohibited personnel practice, as defined under 5 U.S.C. 2302(b)(1) (discrimination based on sex), when it subjected an employee who had transitioned from a man to a woman to gender identity discrimination. In its report, the OSC cited the EEOC’s decision in Macy v. Holder, EEOC Appeal No. 0120120821 (April, 20, 2012), which held that gender identity discrimination is unlawful sex discrimination.

As such, the TSA’s regulations prohibit the unauthorized disclosure of “sensitive security information,” including “details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.”Whistleblower Protections The Whistleblower Protection Act of 1989, 5 U. S. C. §2302(b)(8)(A), protects employees who disclose information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” There is an exception to these protections, however, for disclosures that are “specifically prohibited by law.”

He was fired as an Air Marshal for making this disclosure. He appealed to the Merit Systems Protection Board, claiming whistleblower status, but the agency denied his claim after holding that his disclosure was “specifically prohibited by law,” precluding whistleblower status under 5 U.S.C. § 2302. The Federal Circuit reversed, holding that his actions were not specifically prohibited by law.

Id. at 12. “[Mr.] Whitmore challenged his removal at the [Merit Systems Protection Board ("MSPB")], alleging that the removal was an act of retaliation for his whistleblowing disclosures under 5 U.S.C. § 2302(b)(8).” Id. at 13.

[1] The Securities and Exchange Commission (SEC) considers any limitation on an individual’s ability to communicate directly with the SEC about a possible securities law violation illegal.[2] Other statutory provisions that afford protection for whistleblowers include 5 U.S.C. § 7211 (governing disclosures to Congress) and 5 U.S.C. § 2302(b)(8) (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats). A number of states have restricted an employer’s ability to prohibit certain disclosures by an employee.

An obvious exception is when a court orders the disclosure of the information. But you should also be aware of a growing body of “whistleblowing” exceptions, including the following:The federal Defend Trade Secrets Act protects whistleblowers who disclose trade secret information to government officials or private attorneys for purpose of reporting or investigating suspected violations of law.[1]The Securities and Exchange Commission (SEC) considers any limitation on an individual’s ability to communicate directly with the SEC about a possible securities law violation illegal.[2]Other statutory provisions that afford protection for whistleblowers include 5 U.S.C. § 7211 (governing disclosures to Congress) and 5 U.S.C. § 2302(b)(8) (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats).A number of states have restricted an employer’s ability to prohibit certain disclosures by an employee. For example, California’s Government Code § 12964.5 (effective January 1, 2019) makes it unlawful to require an employee “to sign a … document that purports to deny the employee the right to disclose information about unlawful acts in the workplace….”

Healthy ­burden-shifting framework, the Board articulates the appellant’s burden as follows:In sum, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). In making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described inTroupe, either alone or in combination.

8. Non-Disclosure Agreement LimitationsAmends 5 USC Section 2302(b) paragraph (13) [Prohibited Personnel Practices]- by inserting “or the Office of Special Counsel” after Inspector General. Prohibits using nondisclosure agreements (a.k.a. gag orders) to restrict an employee from disclosing to Congress, the Office of Special Counsel, or an inspector general any information that relates to any violation of law, rule, or regulation or instance of waste, fraud, or abuse.