By Deborah Hopkins, February 10, 2021
We have a new President in the White House, there’s something you may not have realized: He sees things differently than the last guy who occupied 1600 Pennsylvania Avenue. At FELTG we try not to wade into the merits of politics; our job is to take what the current administration says about employment law topics, and relay those to you within the existing framework of law and regulation, plus any relevant Executive Orders. That said, there are certain ways in which the politics of the party in control impact what we teach and how we teach it. Take whistleblowing, for example.
Federal employees who make protected disclosures about waste, fraud, or abuse in the government are considered whistleblowers, and the highest level of workplace protections of any employee group. Higher than veterans, people with disabilities, union officials, religious minorities, LGBTQ individuals, and more. The law says that whistleblowers may not be fired, disciplined, or otherwise mistreated because of their disclosures. If an agency takes an action against a whistleblower, it needs to provide clear and convincing evidence the action was not taken because the employee blew the whistle.
Under President Trump’s administration, there was a focus on firing leakers who shared inside information with the public. Firing a leaker is perfectly legal, unless of course the leaker is a whistleblower – in which case it’s against the law. So, over the last four years agencies concentrated on looking closely at the nature of the disclosure (the “leak”) to determine whether it rose to the level of protected whistleblower activity, or whether it was simply misconduct. If it was a close call, many agencies took the side of management and adopted the stance the disclosure was not protected, and handled the employee accordingly.
Today, we still have to look at the nature of the conduct to determine if it is protected activity, but under President Biden the philosophy about whistleblowers has shifted. Instead of viewing whistleblowers as leakers, the President (when a candidate and then as President-elect) has spoken about the need for employees to disclose waste, fraud, and abuse in the government – heck, he even hired a high-profile whistleblower to be part of his transition team. So now, if there’s a close call, perhaps we’ll see agencies take the side of assuming the disclosure was protected.
This Republican/Democrat dynamic is unsurprising. Republican administrations tend to be more pro-management and Democratic administrations tend to be more pro-employee. Members of both parties have talked publicly, and emphatically, about the importance of protecting whistleblowers – but traditionally hairs have been split when looking at what was disclosed and whether it was protected activity.
What does this mean for whistleblowing in 2021? You might expect, as political appointees are confirmed or placed in your agency, for the tone about whistleblowing to change. Perhaps you will be encouraged to settle existing reprisal complaints. Perhaps whistleblowers will be urged to come forward with disclosures. Perhaps Congress will pass a new law with more protections.
And perhaps not. Regardless of who is in the White House, whistleblower reprisal is going to occur – though our goal at FELTG is to educate the powers-that-be so that reprisal eventually stops altogether. That might be your job too, and now is a good time to check in with what you know, and what you might not know, about whistleblower protections. As timing would have it, Bob Woods will be covering the most important details in just 60 minutes during the February 25 webinar Why, How and When to Avoid Whistleblower Reprisal. We hope you’ll join us. It’s too important to miss. Hopkins@FELTG.com.