Understanding the Prohibition on Retaliation For Federal Whistleblowers

Learn About the Protections Afforded to Employees Who Decide to Blow the Whistle

Employees who file whistleblower complaints are entitled to several protections from federal whistleblower retaliation against federal law. These protections apply to employees in the private and public sectors. One of the most important protections for federal whistleblowers is the protection against retaliation. All federal whistleblower programs provide protections against retaliation—and employers (both private and public) that illegally retaliate can be held fully accountable.

If you are thinking about blowing the whistle on your employer, it is important to ensure that you are making fully informed decisions. Among other things, this means ensuring that you have a clear understanding of the statutory protections that will be afforded to you if you come forward, like the Whistleblower Protection Act and Whistleblower Protection Enhancement Act. Whistleblowers play a critical role in the federal government’s fight against fraud, waste, abuses of authority, and other wrongdoing—and, for this reason, the law protects those who are willing to stand up for what is right.

Interplay Between the Federal Whistleblower Confidentiality and Anti-Retaliation Provisions

While it is important to understand the anti-retaliation provisions that will protect you if you come forward, it is equally important to understand that, most likely, retaliation will not be an issue. This is because whistleblowers are also entitled to strong confidentiality protections under federal law.

Regardless of the federal office, agency, or court with which you file your complaint, your identity will be protected. All federal authorities have a strong interest in protecting whistleblowers’ identities, and disclosure of whistleblowers’ identities is only authorized in extremely limited circumstances. Our whistleblower lawyers can help protect your identity as well, and we can use our prior government experience to work effectively with the government on your behalf.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

The Anti-Retaliation Provisions that Protect For Federal Whistleblowers

While all federal whistleblowers are entitled to protection against retaliation in their employment, different statutes in different circumstances. When you speak with a federal whistleblower lawyer at Oberheiden P.C., your lawyer can explain the specific protections that apply to you based on your individual circumstances.

Protections for Employees in the Private Sector

If you work in the private sector, submitting a whistleblower complaint to the federal government or a law enforcement agency may involve filing under one of several different statutes. Here is a brief look at some of the anti-retaliation provisions that may apply:

• False Claims Act (FCA) – The False Claims Act addresses retaliation by specifying the remedies that are available to employees who experience retaliatory adverse employment actions after blowing the whistle. Under 30 U.S.C. Section 3730(h), “Any employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee,” under the FCA. Section 3730(h) goes on to state that making an employee “whole” may involve reinstatement, two times any back pay owed plus interest, compensation for special damages, and reimbursement of attorneys’ fees. 
• Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) – The Dodd-Frank Act protects whistleblowers who disclose corporate accounting fraud and other statutory violations to the U.S. Commodity Futures Trading Commission (CFTC) and U.S. Securities and Exchange Commission (SEC). As the SEC explains, under the Dodd-Frank Act, “employers may not discharge, demote, suspend, harass, or in any way discriminate against an employee in the terms and conditions of employment who has reported conduct to the Commission that the employee reasonably believed violated the federal securities laws.”
• Taxpayer First Act of 2019 – Under the Taxpayer First Act of 2019, private-sector employees who report tax evasion, tax fraud, and other tax law violations to the Internal Revenue Service (IRS) are protected against all forms of retaliation in their employment. As provided in 26 U.S.C. Section 7723(d): “No employer, or any officer, employee, contractor, subcontractor, or agent of such employer, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment (including through an act in the ordinary course of such employee’s duties) in reprisal for any lawful act done by the employee.” Filing a whistleblower complaint is a “lawful act” protected under the statute. 

Again, these are just a few examples. The Occupational Safety and Health Act and the Fair Labor Standards Act also provide protections for whistleblowers. If you believe that you have information about fraud or other misconduct at your private employer and are considering contacting the government, our lawyers can determine which statute you would be filing under and advise you regarding what this means for your individual circumstances. But, to reiterate, all federal whistleblower statutes include anti-retaliation provisions, so if you come forward in compliance with any of these statutes, you will be statutorily protected against adverse employment action.

Protections for Employees of the Federal Government

Just like private-sector employees, employees of the federal government are also protected against retaliation in their employment when they blow the whistle. The primary protections for federal employees exist under the Whistleblower Protection Act (WPA).

The WPA protects whistleblowers against “taking, failing to take, or threatening to take a personnel action because of an employee’s whistleblowing.” This includes (but is not limited to) termination, demotion, pay reduction, reassignment, denial of employment opportunities, and discrimination and harassment in the workplace. Under the WPA, these protections apply to federal employees who disclose information about (or information that they reasonably believe reflects):

• Violations of federal laws, rules, and regulations
• Gross mismanagement or waste of federal funds
• Abuses of authority (including, but not limited to, bribery and other corrupt practices)
• Substantial and specific dangers to public health or safety 
• Censorship related to scientific research if the censorship also falls into one of the categories listed above

As the U.S. Office of Special Counsel explains, “If you believe that you have been subject to retaliation for whistleblowing you can file a complaint with the U.S. Office of Special Counsel (OSC). OSC is an independent agency that investigates and prosecutes allegations of prohibited personnel practices (PPP) by federal employees. OSC has the authority to investigate PPPs, including allegations of whistleblower retaliation, and may seek corrective or disciplinary action when warranted.”

FAQs: Your Rights if You Choose to Come Forward as a Federal Whistleblower