S. 372, the Whistleblower Protection Enhancement Act (WPEA) currently awaiting Senate passage, is a solid down payment on meaningful reform of whistleblower law for government workers, in terms of rights, due process, remedies and resources. Many of the institutional changes it incorporates into law will be the foundation on which we can build additional reforms in the coming years. It restores a solid infrastructure of rights, due process and remedies. More significant, for the first time it begins a paradigm shift to normal court access. The law does not roll back any preexisting whistleblower rights.
Specifically, this reform
- Closes judicially-created loopholes to the law’s protection
- Creates specific protection in the law for scientific freedom
- Extends whistleblower rights to some 40,000 airport baggage screeners
- Codifies and provides a remedy for the anti-gag statute
- Provides Title 5 workers jury trial access to challenge major disciplinary actions
- Ends the Federal Circuit Court of Appeals monopoly on appellate review, and restores all-Circuit review
- Outlaws security clearance harassment as a WPA violation and establishes minimum due process standards for agency clearance actions
- Provides government contractors the right to make classified whistleblowing disclosures to Congress, and protects government employees who make classified disclosures to relevant congressional committees after first going through the relevant Office of Inspector General
- Requires the Administration to issue corresponding enforcement regulations customized for the IC context but equivalent to the WPA
- Bars retroactive national security exemptions that deprive employees of Title 5 WPEA rights
- Provides compensatory damages, with a $300,000 damages cap for court and security clearance actions
- Expands the Office of Special Council’s (OSC) authority to discipline individuals who retaliate against whistleblowers
Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.