Federal employees lack the ability to seek legal remedies to address issues of retaliation when they act as whistleblowers, one of many oversights in federal whistleblower protections, according to witnesses that spoke before the House Oversight and Reform Committee Jan. 28.
“Federal civil servants are the only major sector of the workforce that don’t have the right to bring whistleblower cases to U.S. district court and seek a jury trial,” said David Colapinto, founder and general counsel at the National Whistleblower Center.
“By contrast, the legal protections for whistleblowers in private industry, publicly traded companies, federal contractors and even in state and local government exceed the whistleblower rights and remedies currently available to federal employees.”
In cases where a federal employee believes they have been retaliated against because of a protected whistleblower disclosure they had made, that employee is expected to put the issue through an investigation process within the agency, one which can often be lengthy and could ultimately fail to protect the employee.
The backlog of whistleblower and prohibited personnel practices cases at the Office of Special Counsel nearly doubled from 2011 to 2016.
Agency heads have the authority to take action or not on retaliation findings made by their agency inspector general, meaning that the IG can find that retaliation took place and leadership has the ability to decide to do nothing about it.
“This system renders their protections all but meaningless,” said Elizabeth Hempowicz, director of public policy for the Project on Government Oversight.
Federal whistleblowers were recently granted the right to appeal their cases to any federal appeals court of competent jurisdiction, but that avenue is only possible after the agency makes a determination of how to address the case.
All of the witnesses that testified at the House Oversight hearing agreed that whistleblower anonymity was also a major issue for ensuring that employees have the confidence to come forward and report waste, fraud and abuse, as those employees need an incentive to potentially risk their careers.
The Government Accountability Office wants congressional offices to take certain steps when interacting with federal whistleblowers.
“Whistleblower anonymity, when asked for, is a fundamentally positive value,” said Paul Rosenzweig, resident senior fellow for national security and cybersecurity at the R Street Institute.
Currently the law requires inspectors general to maintain the anonymity of a whistleblower who wishes to remain unnamed, but that requirement does not extend to a supervisor that may have first heard the complaint or even a member of the administration that learns of the identity.
Colapinto called for Congress to impose stiffer penalties for those that breach whistleblower confidentiality, and Hempowicz added that disclosure of a whistleblower’s identity should be clearly classified as a retaliatory act.