Whistleblower Claims - Federal Employment Law Firm of Aaron D Wersing PLLC

Feb 19, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

MSPB and Affirmative Defenses: What You Should Know

Federal workers facing potential suspension, demotion, or removal often feel like the deck is stacked against them. Fortunately, federal law offers civil servants some key tools for challenging unfair agency actions, including the right to assert an affirmative defense before the Merit Systems Protection Board (MSPB). An affirmative defense can overturn or mitigate an agency’s disciplinary decision if successfully argued. Read on to learn more about how affirmative defenses work, MSPB’s evolving approach to handling them, and how federal employees can use them to protect their job security. What Is an Affirmative Defense? An affirmative defense is a legal argument that federal employees can use to negate a federal agency’s adverse employment action. In an MSPB affirmative defense, an employee doesn’t just argue that an agency misinterpreted facts or lacked evidence for their decision. Instead, an affirmative defense tries to show that an agency’s action violated an employee’s rights or federal law. Common affirmative defenses federal employees use when appealing to the MPSB include: Showing the MSPB that an agency engaged in misconduct in one of these acts is one of the most effective ways for federal employees to challenge and avoid career-damaging adverse actions. How Do Affirmative Defenses Work? Raising an affirmative defense is not just about making allegations—it requires evidence and legal arguments. The federal employee has the burden of proof to show that their agency’s action was improper by “a preponderance of the evidence.” Put simply, they need enough evidence to show the agency violated relevant laws and regulations. This typically involves: For example, imagine a federal employee faces removal after reporting agency fraud to a law enforcement authority. This employee might build an affirmative defense based on whistleblower retaliation with emails establishing that the adverse action happened shortly after their report and testimony from coworkers confirming the agency’s hostile response. If the employee presents enough evidence to demonstrate the agency was motivated by retaliation, they could have their removal reversed. How Has the MSPB’s Approach to Affirmative Defenses Changed? Recent decisions have altered how the MSPB evaluates affirmative defenses. In a 2022 ruling, the MPSB revised certain procedural standards that had provided some advantages to federal employees pursuing these defenses. For example, in the past, if an administrative judge made an error in ruling on a case involving an affirmative defense, the employee could automatically have their case reconsidered, even if their claim lacked substantive evidence or effort. Under the MSPB’s new guidelines, employees must make a more intentional effort to pursue affirmative defense cases. Otherwise, the MSPB has much more flexibility to dismiss a defense that doesn’t meet procedural requirements or lacks legal backing. Ultimately, federal employees must be careful and prepared when using affirmative defenses. Having the support of experienced legal counsel is essential for federal employees to ensure their case is presented correctly and given a fair chance. Dedicated Defenders of Federal Employee Rights Successfully asserting an affirmative defense before the MSPB requires deep knowledge of federal employment laws, procedural rules, and legal strategy. Fortunately, federal employees don’t have to take on the burden of building an affirmative defense alone. The Federal Employment Law Firm of Aaron D. Wersing has provided dedicated and personalized service to federal employees and their families for years. Our team has extensive experience with MSPB cases and employee affirmative defenses, from harmful procedural errors to whistleblower retaliation claims. If you are facing an adverse action, contact our office today to schedule a consultation and learn more about how we can help. Resources: 5 U.S.C. § 7701(c)(2)(A), link.

Feb 14, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | Whistleblower Claims

Whistleblower Retaliation Examples in the Federal Workplace

Speaking up against wrongdoing takes courage—especially in the federal workplace. Employees who report misconduct, fraud, or safety violations expect their concerns to be taken seriously. However, some whistleblowers face retaliation from their agencies instead of being applauded for their honesty. Retaliation can take many forms, some more subtle than others. Understanding how retaliation can appear is crucial for federal employees to protect themselves and their careers. This blog post will explain what federal employees should know about illegal retaliation, offer common whistleblower retaliation examples, and discuss basic steps to take to protect yourself. Understanding Whistleblower Retaliation Whistleblower retaliation occurs when a federal agency punishes an employee because they reported wrongdoing. Under the Whistleblower Protection Act and other federal laws, it’s illegal to retaliate against federal employees who speak out about: Illegal retaliation against federal employees can take many different forms. In broad terms, agencies engage in unlawful retaliation when they take adverse action against an employee for whistleblowing. Many workplace retaliation examples focus on blatant adverse actions against federal whistleblowers, such as: However, many whistleblower retaliation cases involve more subtle forms of agency backlash. For example, some agencies may use performance evaluations as a tool for retaliation by suddenly marking an employee as “unsatisfactory” despite a history of strong work. Isolation and exclusion are another overlooked form of retaliation that federal employees can face. If your supervisors or colleagues suddenly stop communicating with you, remove you from key projects, or exclude you from important meetings, that could be a red flag pointing to retaliation. Other whistleblowers may be under excessive supervision, subject to unwarranted investigations, or face threats and harassment. Examples of Whistleblower Retaliation in the Federal Workplace To better understand what whistleblower retaliation can look like, consider the following scenarios. VA Nurse Faces Sudden Reassignment After reporting patient neglect at a Veterans Affairs (VA) hospital, a nurse suddenly finds themselves reassigned to administrative duties. While they used to be responsible for direct patient care, the nurse was suddenly assigned exclusively to clerical work without any explanation. The reassignment out of a position actively practicing medicine limits their career prospects and job satisfaction. IRS Employee Endures an Internal Investigation An Internal Revenue Service (IRS) employee uncovers tax fraud within their department and follows proper channels to report it. Shortly afterward, they become the subject of an internal investigation based on vague accusations. Their colleagues are warned to avoid contact with them, and they are placed on administrative leave pending the outcome of the investigation. Federal Scientist Excluded from Critical Work A scientist at a federal agency raises concerns about manipulated research data used to support a policy decision. Soon after, they are removed from key projects and denied access to important research meetings. The agency quietly cuts the scientist’s funding, leaving them with little work to do and effectively stalling their career. What to Do If You Face Retaliation After Whistleblowing If you believe you are experiencing whistleblower retaliation, it is essential to act quickly. Here are some steps you can take to protect yourself: These steps can help protect your future livelihood and hold agencies accountable for their unlawful actions. Protect Yourself and Your Federal Career No federal employee should suffer retaliation for doing the right thing. If you believe your agency has taken action against you for reporting misconduct, you don’t have to face it alone. Recognizing whistleblower retaliation examples is the first step, but taking action is crucial. The Federal Employment Law Firm of Aaron D. Wersing PLLC helps whistleblowers fight against retaliation and protect their careers. Our team can assist you in gathering evidence, filing claims with the appropriate agencies, and pursuing legal remedies to secure your rights. Contact us today for a confidential consultation and take the first step toward justice.

Jan 24, 2024 | By Aaron D. Wersing | Read Time: 3 minutes | Whistleblower Claims

Is Nepotism Illegal in the Federal Workplace?

The word “nepotism” refers to favorable treatment towards an individual in the workplace because of their familial connection. Few people know what nepotism looks like, and even fewer know about the legality of nepotism in the federal workplace. This is completely understandable, given that nepotism is not as well-known as race or age discrimination. Nonetheless, it’s vital you understand the truth about nepotism because it can have destructive effects on your career. Clients occasionally ask us, Is nepotism illegal in the workplace? The answer is yes. In this article, we’ll discuss the official definition of nepotism, as well as the applicable federal employee nepotism laws that prohibit it. If you think you or a loved one are experiencing nepotism, contact our talented federal employment attorneys today. Nepotism: Definition and Applicable Federal Employee Nepotism Laws The word nepotism originates from the Latin word for nephew. 5 U.S.C. § 2302(b) defines nepotism as the appointment, employment, promotion, or advancement of any individual who is a relative to a civilian position within the federal government. 5 U.S.C. § 3110(a)(3) defines a relative as any of the following: Although grandparents and grandchildren are technically left out of this definition, advocating for appointing them to a federal position would likely run afoul of ethics regulations. The chief law that applies to nepotism is the Civil Service Reform Act of 1978, which is the foundational law for the modern federal civil service. However, it is also prohibited by 5 C.F.R. § 2635. This statute outlines the standards of ethical conduct for federal employees. Finally, 18 U.S.C. § 208 renders nepotism a criminal act in situations where a federal official participates in a matter in which they have a personal financial interest. Is Nepotism Illegal in Government Workplaces? To put it simply, yes. Nepotism is illegal in certain cases, such as government jobs with anti-nepotism laws. It can also lead to lawsuits if it causes discriminatory practices. Title VII of the Equal Employment Opportunity laws prohibits discrimination based on race, religion, color, national origin, or sex. This prohibition aims to uphold the integrity of the federal civil service. It further attempts to guarantee that employment decisions are predicated on a person’s merit and qualifications rather than their familial connections. It’s also worth noting that nepotism is a prohibited personnel practice. That means that any employee who witnesses nepotism in a government space can file a complaint with the Office of Special Counsel (OSC). Filing a complaint makes you a federal whistleblower and protects you from any act of retaliation. Nepotism vs. Cronyism People often confuse nepotism with its equally shady cousin, cronyism. While they’re branches of the same unsavory tree, there are subtle differences between them. Let’s briefly explore the differences. Nepotism As we discussed earlier, nepotism is all about family. It takes place when someone in a position of authority in a federal workplace gives preferential treatment to their relatives. One example would be hiring your brother for a role he’s not quite cut out for. Another example would be promoting a cousin over more qualified candidates. It’s the family ties that bind in nepotism. Cronyism Instead of family, cronyism is all about friends and associates. Cronyism occurs when someone in power favors friends or acquaintances, offering them jobs or promotions because of their personal relationships rather than their qualifications. We’ve all heard the old adage, It’s not what you know, but who you know. Cronyism would be the extreme version of that adage coming to life. Yet while American legal and ethical standards have always frowned upon nepotism, cronyism has been somewhat more common in this nation’s history. Nonetheless, cronyism is unacceptable under federal ethics standards. Are You Witnessing Nepotism In Your Federal Workplace? Take a Stand with the Federal Employment Law Firm of Aaron D Wersing PLLC. Whether it takes the form of nepotism or cronyism, favoritism has no place in the federal workplace. Only a person’s merit and performance at work should control their position in the government. If you think you might be a witness to nepotism in your workplace, take action today. Before you take action, it’s prudent to consult with a federal employment attorney. They can help you make sense of what you’re experiencing, confirm whether the behavior is nepotism, and present you with your legal options. If necessary, a federal employment attorney can help you prepare and file a complaint with the OSC to correct the situation. Don’t just trust any law firm to represent you. Instead, go with a firm that is deeply knowledgeable about federal employment issues. The team at the Federal Employment Law Firm of Aaron D Wersing PLLC, only practices federal employment law. We won’t make rookie mistakes like other firms. Instead, you can rely on us to provide top-notch legal representation and first-rate customer service. Call us today or reach out to us on our website to set up your initial consultation.

May 1, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

What Is a Protected Disclosure in a Federal Whistleblower Case?

Under federal whistleblower law, a protected disclosure is a report of wrongdoing or misconduct made by an employee or contractor of the federal government. The disclosure must be made in good faith. In addition, it must concern several specific types of allegations, such as a violation of a law, rule, regulation, or other legal requirement. You’re probably reading this article because you’re considering blowing the whistle on your employer. You may very well feel overwhelmed, scared, or anxious. But the good news is that federal law provides protections for whistleblowers. More than that, you don’t have to fight this battle alone. Contact a qualified federal employment attorney for assistance today. First Things First: What Protection Is There for Whistleblowers? Two legislative cornerstones work together to protect whistleblowers. The first is the Whistleblower Protection Act (WPA), and the second is the Whistleblower Protection Enhancement Act (WPEA). The WPA Congress originally passed the WPA in 1978, but it has been updated several times. The WPA specifically protects federal employees who make protected disclosures about government misconduct. It also prohibits retaliation against employees who disclose things like waste, fraud, abuse of authority, or violations of law, rules, or regulations. Finally, the WPA furnishes a process for whistleblowers to file complaints to the Office of Special Counsel (OSC) and seek remedies for retaliation. Thanks to the WPA, federal employers can’t take adverse personnel actions against an employee who makes a protected disclosure. And what are adverse personnel actions? They include, but are not limited to: If an employee experiences retaliation, they can file a complaint with the OSC within 45 days of the adverse action. The OSC will then investigate the complaint. If it finds evidence of retaliation, it can take corrective action, including reinstatement, back pay, and attorneys’ fees. The WPEA In 2012, Congress passed the Whistleblower Protection Enhancement Act (WPEA), which strengthened the legal protections for federal whistleblowers. The WPEA clarified and expanded the definition of a protected disclosure, making it easier for employees to qualify for whistleblower protections. The WPEA also expanded the WPA’s scope to cover more employees. Newly covered personnel included Transportation Security Administration employees and intelligence community employees. Even government contractors received coverage under the WPEA. The WPEA provides several key additional protections for whistleblowers. For one, it adds a mechanism for whistleblowers who experience retaliation to get temporary relief. The WPEA also empowers a whistleblower to request a stay of an adverse personnel action while their complaint is pending. If the OSC determines that the employee has a substantial likelihood of success on the merits, it can request they receive reinstatement while their complaint is pending. So What Is a Protected Disclosure in a Federal Whistleblower Case? Now that you know more about key whistleblower legal protections, let’s dive into the issue we mentioned at the beginning of this article. A protected disclosure is a release of information by a federal employee that demonstrates evidence of: Those categories provide sweeping protections to all kinds of statements. Protected statements can be made to a supervisor, the Inspector General, or even Congress. However, many disclosures still fall outside the definition of “protected disclosures.” For instance, a personal grievance or report of general workplace dissatisfaction probably won’t count as a protected disclosure. Nor will a general complaint unrelated to any illegal activity or safety concerns. Three Examples of Protected Disclosures To help drive the point home, let’s imagine three potential real-world scenarios involving protected disclosures. Example #1 Jane is a federal employee working for the Department of Agriculture. One day, she discovers her supervisor has been illegally selling government-owned land to a private company for personal gain. Jane reports this misconduct to her agency’s Office of Inspector General. This would count as a protected disclosure under the WPA. Example #2: John is an applicant for a position with the Environmental Protection Agency (EPA). After his interview, he stumbles upon evidence that a high-ranking official in the agency has been tampering with data to downplay the impact of a hazardous chemical on public health. John decides to share this information, a protected disclosure, with the agency’s Office of Special Counsel. Example #3: Sarah works for the Department of Defense. She has been assigned to a project that she believes poses a serious risk to national security. She brings it up to her supervisor first, but he orders her to stay quiet. As a union member, she decides to contact a union steward and file a grievance to disclose the information. You Don’t Have to Fight Wrongdoing on Your Own. Let Us Help. Legal assistance is crucial if you are considering making a protected disclosure. It’s even more critical if you think you are facing whistleblower retaliation. Many wrongdoers in the government resort to intimidation and threats to protect themselves. And often, whistleblower complaint procedures become complicated quickly. Don’t go it alone. Trust our team at the Federal Employment Law Firm of Aaron D. Wersing, PLLC. Our attorneys have extensive experience handling whistleblower complaints before the OSC. When you consult with us, we will listen to your story and apply the law to your situation. Then we will inform you of your legal options and potential next steps. Let’s collaborate to safeguard your rights and secure your fair compensation. Time is of the essence, so don’t wait another moment. Call us today at 866-612-5956 or contact us online.

Dec 30, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

Whistleblower Protection Laws for Federal Employees

If you have a position with the federal government, you have been entrusted with a high level of responsibility for all of us in this country. Unfortunately, not every government employee or leader honors their obligation to respect the laws and the public with their service. When a colleague or supervisor falls short of their legal obligations, you have the option (and sometimes the duty) to report their misconduct. And if you are afraid your report will cause severe personal and professional harm, remember that federal whistleblower protection laws can shield you from the fallout of exposing bad behavior. At the Federal Employment Law Firm of Aaron D. Wersing, we are dedicated to protecting and championing the rights of federal employees. You deserve a strong advocate when you do the right thing, and we are here to shield your efforts to uncover misconduct in your workplace. What Is Whistleblowing? You are a whistleblower if you disclose information to an authority about any of the following activities occurring at work: Reporting these activities is protected, and even required, if a federal employer is being wasteful, fraudulent, abusive, or corrupt. The law also protects federal employees from retaliation if they initiate a whistleblower complaint, refuse an employer’s request to break the law, or assist with a whistleblower complaint or investigation. Whistleblower Protection Many employees are understandably fearful of reporting their employer’s violations of the law to legal authorities because there’s a potential that their employer will punish them for their actions. But the law provides federal employee whistleblower protection and avenues for federal employees to initiate legal action if they are unfairly penalized. The Laws The Legislature passed the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA) to protect federal employees from professional harm motivated by their disclosure of misconduct. The law recognizes the public benefit in preventing unfair punishment of government whistleblowers. An employee has the right to formally complain if an employer takes any of the following actions against you because of your whistleblowing: The whistleblower laws also protect and provide legal options for applicants for federal employment. If you signed a non-disclosure agreement before or during your employment with a federal agency, have an experienced attorney review the terms. While your federal employer can require you to sign and comply with non-disclosure agreements, the WPEA prohibits agreements that conflict with whistleblower protection laws. Where to Report Employer Wrongdoing Once you are aware that your employer has committed a violation, you can report the wrongdoing to your supervisor/management, the Inspector General (IG) for your agency, the Office of Special Counsel (OSC), or Congress. If your report of misconduct includes classified national security information or legally protected information, you must use confidential means, such as reporting to your IG, OSC, or Congress. Privacy Protections for Whistleblowing Employees In addition to protection from professional punishment, the law protects whistleblower privacy. If you divulge legal violations to an IG or the OSC, both authorities are generally prohibited from revealing your identity. The IG may disclose your identity only if the disclosure is unavoidable or required by a court order. And the OSC may reveal your identity only if it concludes that disclosure is necessary because of imminent danger to the public or an imminent violation of criminal law. Filing a Whistleblower Retaliation Complaint If you are a whistleblowing employee who is unlawfully punished at work, the law allows you to seek legal redress from the OSC and the U.S. Merit Systems Protection Board (MSPB). If the OSC or MSPB determines that your employer violated one of the whistleblowing laws, you can win: To win, you must prove that your employer took employment action against you because of your whistleblowing. And after you initiate legal action, your employer can defend itself by proving by clear and convincing evidence that it would have taken the same action against you regardless of your whistleblowing. When you file a whistleblower retaliation complaint, you must meet multiple deadlines and complete significant amounts of paperwork. You should speak to an experienced federal employment attorney immediately after suffering unlawfully motivated punishment at work. An experienced attorney can quickly and timely file the necessary complaint paperwork and guide you through the process and your legal options. Our Attorneys Help Federal Employees At the Federal Employment Law Firm of Aaron D. Wersing, our attorneys are uniquely skilled at protecting the rights of federal employees. We have helped hundreds of federal employees reverse adverse employment decisions, receive work accommodations, and win damages. We are experienced in handling virtually every type of federal employment legal dispute. You work hard to protect the interests of this country, and we work hard to protect you. Please call us at 866-298-1681 or contact us online.

Sep 9, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

What Does the U.S. Office of Special Counsel Do?

The U.S. Office of Special Counsel (OSC) is a federal agency that focuses on helping whistleblowers. The OSC primarily investigates claims of whistleblower retaliation and, if necessary, takes action against bad actors. Thus, the OSC plays a critical role in protecting whistleblowers and encouraging them to report bad actors. Read on to learn more about the OSC’s methods and how to file a complaint. If you are considering filing an OSC complaint, you should contact a qualified employment law attorney first. What Exactly Does the OSC Do? The OSC is an independent federal agency that looks into claims of government wrongdoing. It also accepts complaints from whistleblowers, protects them from retaliation, and holds bad actors accountable across the government. The OSC also investigates claims of prohibited personnel practices. This category includes things like illegal discrimination, nepotism, and forcing employees to engage in political activity. Because of its unique mission, the OSC can force federal employees and agencies to cooperate in an investigation. It can also force federal employees to testify in court and reveal important and relevant documents. A nd unlike many other federal agencies that investigate claims, the OSC protects whistleblower’s personal information. What Kinds of Wrongdoing Does the OSC Review? When it comes to claims of wrongdoing, there are six major kinds of whistleblower disclosures that the OSC reviews: Gross mismanagement—This phrase does not include a minor mistake by your manager once in a while. Gross mismanagement exists if there is a constant pattern of arbitrary action, fraud, or abuse by your manager that has a notable economic impact. Gross waste of funds—Like gross mismanagement, this phrase refers to significant expenses that make no sense. An expense that reasonable people might disagree about generally will not make the cut. Violation of a law, rule, or regulation—This category is mostly self-explanatory. It does not matter whether the wrongdoer acted intentionally or not. Censorship—OSC specifically focuses on censorship claims that have to do with scientific, technical, or analytical information. One example might be a government scientist who disputes an agency’s decision to classify environmental research about a terrible ecological threat to humanity. Substantial and specific dangers to public health or safety—In any free country, the public has a right to know about significant dangers. So the OSC protects whistleblowers who reveal these dangers as long as the dangers are not vague or insignificant. Abuse of authority—As with gross mismanagement and gross waste of funds, there needs to be a significant degree of abuse. This may mean there is a regular pattern of abuse, or a single instance that was completely out of line. When in doubt, it is better to come forward with a claim of wrongdoing rather than ignore it. If you are debating whether to report wrongdoing, contact a federal whistleblower attorney for guidance first. What is a Prohibited Personnel Practice? Federal law defines 14 prohibited personnel practices (PPPs). These include the following: Asking for or considering recommendations for employment for reasons other than a person’s qualifications for the job; Deceiving or preventing someone from competing for federal employment; Coercing someone to engage in political activity, like donating to a campaign fund; Retaliating against someone for filing a complaint or exercising their rights; Retaliating against someone for reporting wrongdoing; Discriminating against someone because of conduct unrelated to their job; Taking a personnel action against a federal employee for improper or illegal reasons; Taking a personnel action that would violate a U.S. veteran’s preference; Carrying out a nondisclosure agreement or policy that does not give rights to whistleblowers; Illegal discrimination, including race, sex, gender, age, color, and national origin discrimination; Nepotism, which means hiring a person because of their family relationships rather than their qualifications for the job; Influencing someone to withdraw from competing for a government position; Giving unauthorized preference to a person for employment, either to improperly help them or improperly injure the chances of another person; and Accessing a person’s medical record, especially if doing so to further another PPP. As you can see, some of these categories are very broad. Thankfully, a qualified attorney will be able to help you determine whether your situation falls within one of these categories. How Do I File a Disclosure of Wrongdoing to the OSC? The OSC used to offer three different complaint forms online. Depending on the type of claim you were filing, you had to use a different complaint form. More recently, the OSC introduced a new form for all complaints called OSC Form-14. You can fill out a copy of OSC Form-14 online and submit it on the OSC’s website. However, you should know that filling out a complaint in a way with the OSC that best correlates to the law is complicated. To maximize the chances of your claim being investigated, consult an attorney to help you file out the form. We Can Help You File an OSC Complaint or Defend Your Rights Whether you’re considering filing a complaint or suffering whistleblower retaliation, you should obtain legal assistance. Many government wrongdoers will go to great lengths to protect themselves and punish anyone trying to expose their misdeeds. Intimidation and threats are all too common. On top of that, the procedures and laws surrounding whistleblower complaints are quite complex. If you’re looking for an experienced federal employment lawyer, you have come to the right place. Our team at the Federal Employment Law Office of Aaron D. Wersing, PLLC has tremendous experience with whistleblower and PPP complaints before the OSC. We can help apply the law to your case, inform you of your legal options, and provide you with outstanding legal representation. Let’s work together to defend your rights and get your fair compensation. Time is critical, so don’t wait another second. Call us at 866-612-5956 today. You can also reach out to us online.

Jun 8, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

What Should Whistleblowers Know Before They Act?

Whistleblowers are underappreciated heroes, and calling out wrongdoing in the federal workplace is a noble action. However, it is not something you should do lightly. Before you do anything, you need to know what a whistleblower is. On top of that, it is vital that you understand your rights as a whistleblower before you act. So if you are considering reporting wrongdoing, read this whistleblower guide carefully. We will discuss the definition of a whistleblower and the protections that a whistleblower action provides. You should also contact one of our attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC for specific legal advice regarding your situation. What Whistleblowers Should Know First: The Definition of a Whistleblower The most important thing you need to know is what makes you a whistleblower according to the law. In other words, to become a whistleblower, what actions do you need to take? In the federal workplace, you need to make a “protected disclosure” to qualify for whistleblower protections. The Office of Personnel Management (OPM) defines a “protected disclosure” as “any disclosure of information that an employee, former employee, or applicant for employment” reasonably believes shows one or more of the following: This means that complaining about your boss’s curt comment or your coworker’s annoying personal habits will probably not rise to the level of “protected disclosure.” However, these terms use broad wording intentionally to encompass a wide variety of other inappropriate behaviors. When crafting these laws, Congress sought to give federal employees the benefit of the doubt in a whistleblower action. One of the ways they accomplished this goal was by requiring that whistleblowers only “reasonably believe” the information they passed along constituted evidence of misconduct. Put another way, if you disclose alleged misconduct in whistleblower action that turns out not to be prohibited behavior upon further investigation, you still receive whistleblower protection as long you reasonably believed the behavior was inappropriate. Whistleblower Protections Federal law protects whistleblowers from any and all retaliatory “personnel actions.” But what is a personnel action? Federal law defines that phrase to include the following: Orders to undergo psychiatric testing or examination and “any other significant change in duties, responsibilities, or working conditions” are also personnel actions. That means that if your employer demotes you, changes your duties, rescinds an award, or gives you a bad performance review because of your disclosure, they have broken the law. How Should I Disclose Wrongdoing? The law does not require whistleblowers to make a protected disclosure to a certain person. On the contrary, whistleblowers have wide latitude on how to make a protected disclosure. For example, they can disclose wrongdoing to their first-line supervisor or second-line supervisor. They can also disclose wrongdoing to their agency’s Inspector General, the Office of Special Counsel (OSC), or even Congress itself. You will receive whistleblower protections as long as you reasonably believe that your whistleblower action reveals misconduct. Can I Choose to Remain Anonymous? It depends. When you make a protected disclosure to the OSC, you can choose to remain anonymous. Furthermore, most agencies’ Inspector General offices have anonymous hotlines that you can use to make a protected disclosure. But the OSC can publicly reveal your identity if they determine it necessary because of imminent danger to public health or safety. Further, if you want to claim whistleblower retaliation, you must generally show that your whistleblowing contributed to the retaliatory action. This may be harder to show if you remain anonymous. Can Probationary Employees Receive Whistleblower Protections? Yes. Federal employees are considered “probationary employees” for their first year of federal service. As probationers, they enjoy far fewer rights than non-probationary employees. For example, probationary employees cannot appeal adverse actions, including terminations, to the Merit Systems Protection Board (MSPB). However, probationary employees can appeal alleged acts of retaliation for whistleblowing to the MSPB. Consult a Lawyer Before You Become a Whistleblower Even though most people applaud whistleblowers, becoming one can change your career forever. Unfortunately, whistleblower retaliation is an all too common sight in the federal workplace. So before you make a protected disclosure, it’s best to reach out for legal advice from an experienced federal employment attorney. Here at the Federal Employment Law Office of Aaron D. Wersing, our talented legal team can help you file a complaint with the OSC or your employer. We can also verify that your complaint meets the standard of a “protected disclosure” so that you can qualify as a whistleblower. With our decades of experience protecting federal employees, we know what retaliation looks like and how to fight it. So we are prepared to defend you aggressively against retaliation by your employer and protect your rights. Don’t risk your federal career by going it alone. Reach out online or call us at 833-833-3529.

May 25, 2022 | By Aaron D. Wersing | Read Time: 3 minutes | Whistleblower Claims

How to File an OSC Complaint Under the Whistleblower Protection Act

Most of us would like to live in a world where whistleblowers are free from retaliation. However, the cold, hard truth is that whistleblowers come under attack all the time because of their efforts to clean up the government. Congress was well aware of this fact when it passed the Whistleblower Protection Act (WPA) in 1985. Thanks to the WPA, the United States Office of Special Counsel (OSC) has the power to protect whistleblower employees by investigating claims of whistleblower retaliation. That said, filing an OSC complaint isn’t easy. In this article, we’ll go over how you can file an OSC whistleblower complaint and how to ensure that you’re eligible to file an OSC complaint. We’ll also touch on what you can expect from the OSC complaint process. However, if you have more questions or think that you are the target of whistleblower retaliation because you called out your government employer, contact a qualified federal employment attorney right away. How Do I Know If I’m Eligible to File an OSC Complaint? To file an OSC complaint, you need to meet four requirements. Verifying that you meet these requirements will ensure that the OSC properly reviews your complaint and does not screen it out. Requirement #1: Current or Former Employee of the U.S. Government’s Executive Branch The OSC doesn’t protect private sector whistleblowers. It also doesn’t have any jurisdiction over whistleblowing complaints filed by employees of the military, CIA, NSA, or FBI. Requirement #2: Protected Disclosure To qualify as a whistleblower, an employee must make a “protected disclosure.” A federal employee makes a protected disclosure when they blow the whistle on an agency action that they reasonably believe to be: Simply reporting your boss for being rude or micromanaging your team doesn’t qualify as a protected disclosure. The action or behavior that you report must fit into one of the categories listed above. Requirement #3: Adverse Action By Agency Obviously, a claim of whistleblower retaliation requires that the employer act against the employee. Retaliation can take on many forms, including: Just threatening to take negative action against an employee also counts as an adverse action. Requirement #4: The Agency’s Adverse Action Is Connected to Your Protected Disclosure When you submit your OSC complaint, you need to be able to demonstrate that the action your agency took against you was caused by your protected disclosure. You can prove this through emails, letters, video evidence, or even the timing between the two events. If you meet these four requirements, you’re probably eligible to file an OSC complaint under the Whistleblower Protection Act. How to File an OSC Complaint Under the Whistleblower Protection Act To submit a complaint of whistleblower retaliation, you need to fill out and submit a copy of OSC Form 14. Filling out the form is quite a long process. Be ready to fill in your contact information, whether you’re covered by a collective bargaining agreement, your current employment status, and the specific protected disclosures that you made. Because of the complexity of the form, we recommend that you consult an attorney to ensure that your complaint is submitted successfully. How Long Does OSC Take to Process a Whistleblower Complaint? There’s no easy answer to this question. The time it takes for OSC to process and investigate your complaint depends on the complexity of your allegations, the amount of evidence you have, and other factors. That being said, you can expect the process to take between120 days and 240 days. Do You Need Legal Counsel Because You’re the Target of Whistleblower Retaliation? OSC investigates whistleblower complaints as a matter of government policy. However, an OSC examiner is under no obligation to represent your personal interests. That’s why you need an attorney on your side if you’re planning to file an OSC complaint. The Federal Employment Law Office of Aaron D. Wersing, PLLC understands the invaluable service that whistleblowers provide to our country. Our goal is to provide outstanding representation to anyone brave enough to call out injustice and wrongdoing in the federal workplace. Once one of our attorneys takes up your case, we’ll go the extra mile to defend your rights against your employer. We’ll also fight to ensure that the OSC takes your complaint seriously and properly investigates your complaint. Still a little hesitant to contact an attorney? Don’t wait. Call us today at 833-833-3529 or contact us online.

Dec 18, 2020 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

VA Accountability and Whistleblower Protection Act of 2017: What Potential Whistleblowers Need to Know

For years, the U.S. Department of Veterans Affairs (VA) has faced criticism over its ability to serve veterans effectively. Reports from the VA’s Inspector General dating back to 2006 note problems with malpractice, mismanagement, and corruption. Despite a budget in the hundreds of billions of dollars, some VA facilities continued to provide lackluster care and support for veterans. President Trump signed into law The VA Accountability and Whistleblower Protection Act of 2017 as a way to address some of these issues. Since then, this Act has been used as a “fast track” to disciplinary actions against VA employees, many of them low to mid-level employees. The Act has faced much criticism since its enactment and it has caused many problems, however, one silver lining is the protection it provides to whistleblowers. The Act provides important rights to VA employees who blow the whistle on mismanagement within the VA. What Is the VA Accountability and Whistleblower Protection Act? The VA Accountability and Whistleblower Protection Act is a federal law designed to better regulate the VA. The Act established the Office of Accountability and Whistleblower Protection (OAWP) within the VA to improve its service to veterans. The OAWP’s purpose is to hold VA officials and employees accountable for their actions in running the VA. The OAWP also provides oversight to ensure the proper treatment of whistleblowers who expose poor management or misconduct within the VA. One important change the VA Accountability and Whistleblower Protection Act made was the shortened deadline for appeals to the Merit Systems Protection Board (MSPB), which was reduced from 30 calendar days to 10 business days. What Is a Protected Whistleblower Disclosure? The Act protects both current and prospective employees of the VA when they disclose certain information. There are two main classes of information that qualify for whistleblower protection under the Act: The Act protects whistleblowers by requiring the VA to develop criteria used to evaluate the performance of supervisory employees. The Act requires these criteria to promote the protection of whistleblowers, by improving how reported concerns are addressed and how whistleblowers are treated. In other words, VA employees in supervisory roles must maintain an environment that encourages employees to report misconduct without fear of retaliation or discipline for doing so. The whistleblower protections offered under the Act prohibit prosecution or reprisal against VA whistleblowers if their disclosures are lawful. All disclosures reported to Congress, the VA Inspector General, or another investigatory agency (like the OAWP or EEOC) are lawful. How Do I File for Whistleblower Protection? Whistleblower protection under the VA Accountability and Protection Act applies automatically to employees of the VA who have filed a complaint of whistleblower retaliation to either the Office of Special Counsel (OSC) or OAWP. The OAWP offers an online intake form for fast, anonymous reporting. After affirming your employment status with the VA and the nature of your complaint, you can describe the retaliation or misconduct and submit the complaint. A complaint with the OAWP is not appropriate for allegations involving laws administered by the Equal Employment Opportunity Commission (EEOC), such as claims of discrimination or disparate treatment. A complaint should be filed with the EEOC for allegations of discrimination, harassment, or a hostile work environment and you should get in contact with an EEOC lawyer right away, VA whistleblowers can also file complaints with the U.S. Office of Special Counsel (OSC) if they witness prohibited personnel practices by another federal employee. Federal law prohibits 14 specific kinds of conduct, known as prohibited personnel practices (PPPs), by federal employers. The PPPs range from discrimination and harassment to hiring others based on their relationship to the hirer (i.e. nepotism). A VA whistleblower attorney can help you decide where you should file your complaint based on your situation. Depending on the nature and severity of the misconduct you experience, you may be able to obtain better remedies filing in one office versus another. How Long Do You Have to File a Whistleblower Complaint? In many cases, a whistleblower should file their complaint as soon as possible. This is due to the enactment of protections which can be extremely helpful if initiated early. An effective whistleblower complaint is thorough but direct and contains sufficient, clear evidence to support your claims. Submitting a complaint too soon may result in less evidence at the beginning, but you can continue to provide additional information as the claim develops. A VA whistleblower attorney can help you determine when you should file your complaint and what you should expect during the process. A whistleblower attorney can also provide you with practical advice regarding protecting your identity and what you should do if you face retaliation for coming forward. Contact a Department of Veterans Affairs Whistleblower Attorney Whistleblowers play an important role in holding government agencies accountable. At The Law Office of Aaron D. Wersing, PLLC, we focus on a variety of issues that affect federal employees, including whistleblower complaints. If you’ve witnessed misconduct at the VA or the federal agency where you work, we can help you blow the whistle. Contact us today or give us a call at (833) 833-3529 to schedule your consultation about your case.