S. 372: Whistleblower Protection Enhancement Act

S. 372

Whistleblower Protection Enhancement Act

Date
December 23, 2010 (111th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

S. 372 is expected to be considered on the House floor on Wednesday, December 22, 2010, under a suspension of the rules, which requires a two-thirds majority vote to pass.  This legislation was introduced by Sen. Daniel Akaka (D-HI) on February 3, 2009.  The Senate approved the bill on December 10, 2010 by unanimous consent.

Bill Summary

S. 372 would amend federal personnel law relating to whistleblower protections to expand the definition of a protected disclosure, define evidentiary standards, prohibit the implementation or enforcement of a nondisclosure policy to prevent an employee from making a disclosure, and extend protection to federal employees not covered by current law.

Whistleblower & Disclosure Protections:  The bill would ensure that disclosures are not excluded. The types of disclosures covered under the bill would include the following:

•      A disclosure made during the normal course of the employee's duties;

•      A disclosure made to a person, including a supervisor, who participated in the wrongdoing;

•      A disclosure that revealed information that had been previously disclosed;

•      A disclosures that are not made in writing; or

•      A disclosure made while the employee was off duty.

The bill would clarify that disclosures could not be declared unprotected simply because of the employee's motive for making the disclosure or due to the amount of time that has passed since the events described in the disclosure.  The bill would stipulate that a whistleblower at an agency could not be deprived of coverage unless the president removes the agency from coverage prior to a challenged personnel action being taken against the whistleblower.

Disclosure Definition:  The bill would expand the statutory definition of disclosure to include any formal or nonformal communication. The definition would exclude communication concerning policy decisions that "lawfully exercise discretionary authority" unless the individual making the disclosure believes that illicit activity occurred.  Additionally, the bill would extend whistleblower protections for disclosures that are evidence of censorship related to research, analysis or technical information.

Prohibited Personnel Practices:  The bill would expand the list of prohibited personnel practices to include the implementation or enforcement of a nondisclosure policy that does not contain a specific statement preserving the right of federal employees to make disclosures of illegality. 

Corrective Actions:  The bill would allow corrective action taken on behalf of an employee making a disclosure to include fees, costs or damages if the use of a prohibited personnel practice was undertaken in retaliation for a disclosure.  The bill would require the Office of Special Council to demonstrate that a protected disclosure was a significant motivating factor in the agency's decision to take an adverse action against a whistleblower.  The bill would also create a new standard of proof in disciplinary hearings against supervisors who take adverse personnel actions against whistleblowers, requiring the supervisor taking the adverse action to demonstrate by a "preponderance of evidence" that he or she would have undertaken the action regardless of a disclosure being made.

Extensions & Exclusions of the Whistleblower Protection Act:  The bill would add the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage.  The bill would extend coverage to include employees and applicants of the Transportation Security Administration.

Background

The passage of the Civil Service Reform Act in 1978 established statutory protections for federal employees who disclose incidents of government illegality, waste, fraud and abuse.  The law established the Office of Special Counsel (OSC) to investigate and prosecute allegations of prohibited personnel practices or other violations of the merit system and established the Merit Systems Protection Board (MSPB) to adjudicate such cases.

In 1984, the MSPB reported that the law had no effect on the number of whistleblowers and that federal employees continued to fear reprisal.  In 1989, Congress responded to these findings by passing the Whistleblower Protection Act (WPA). The WPA prohibits retaliation against federal employees who disclose what they reasonably believe to be evidence of illegal or other seriously improper activity committed by government employees.  The WPA prohibits taking adverse personnel action against an employee because that employee makes a protected disclosure.  An employee who claims to have suffered retaliation for having made a protected disclosure may file an appeal with the MSPB, ask the OSC to investigate or file a grievance.

In 1994, Congress passed a package of amendments to further address the types of disclosure that qualify for whistleblower protections.  Those amendments prevented agencies from denying protections by designating the employee's particular position as a confidential policy-making position.  Since the enactment of those amendments, several more decisions have again restricted what types of disclosures are considered protected by the WPA.  

Cost

The Congressional Budget Office (CBO) does not have an updated score for the bill as approved by the Senate.