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Federal agencies at odds over scope of employee whistleblower protections

On Behalf of | Sep 15, 2020 | Whistleblowing |

Whistleblower law can be exceedingly complex. For federal employees, navigating the maze of civil service laws – not to mention the alphabet soup of agencies – can be daunting. Sometimes, even the federal government itself can’t agree on the interpretation of those laws.

Case in point: a recent whistleblower claim that has two federal agencies at odds over the scope of legal protections.

The retaliation claim

The claim involves a pharmacist for the Department of Veterans Affairs who alleged that she was demoted by the VA in retaliation for whistleblowing. The Merit Systems Protection Board (MSPB) dismissed her retaliation claim. It reasoned that the pharmacist’s whistleblowing disclosures – which were one of the grounds for her retaliation claim – had been frivolous. The Office of Special Counsel (OSC), however, is arguing that the MSPB overlooked a critical part of her claim.

Two prongs for claiming whistleblower retaliation

The whistleblower law in question protects federal employees from retaliation for two types of whistleblowing:

  • Making certain disclosures, and
  • Engaging in protected activities

“Protected activities” include testifying in employment-related hearings. In this case, the pharmacist had also asserted that she was demoted in retaliation for testifying on behalf of a coworker in an Equal Employment Opportunity proceeding – a protected whistleblowing activity. In the OSC’s view, the MSPB was wrong to dismiss her claim without considering that prong of her complaint.

The dispute is fairly technical, but its impact is far-reaching. If the MSPB’s narrow interpretation of the law stands, federal employees may be hesitant to report wrongdoing, testify in grievance proceedings or engage in other protected activities. The decision currently lies in the hands of the U.S. Court of Appeals for the Federal Circuit.