Know Your Rights:

Whistleblower Protections for Federal Sector Employees

The Project On Government Oversight (POGO) has put together this web resource to help federal sector employees learn more about their whistleblower rights. The information here is just a starting point and is not legal advice. The legal information POGO provides closely follows the statutory language where it exists. Agencies and courts may interpret the law differently and more narrowly than one might assume. For legal advice specific to one’s circumstances, seek the services of a qualified and experienced attorney. Blowing the whistle is risky business.

There is a patchwork of legal protections for federal sector employees who blow the whistle. The relevant law depends on where you work in the federal government, and whether you are a government employee, uniformed member of the armed services, or contractor. Knowing what law one falls under matters since the protections vary from law to law from what types of disclosures are protected to where one can legally disclose problems.

This web resource is focused on whistleblower protections for federal sector employees who have made or are considering making disclosures related to their workplace. But there are other legal protections that may be more relevant to a federal sector employee’s question about their free speech rights. For instance, the Supreme Court has held that the First Amendment generally protects government and contractor employees from job loss for speech in their capacity as private citizens on matters of public concern. But there are limitations, including an exception for speech made pursuant to official job duties. Again, seek the services of a qualified and experienced attorney for legal advice.

Disclaimer

The Project On Government Oversight ("POGO") provides the Know Your Rights portal and the information therein as a source of general knowledge and solely in the hopes that it will be a helpful resource for current and potential government whistleblowers.

That being said, we are cognizant of the legal realities of our world, and thus we include the following disclaimer:

This is not legal advice nor a substitute for it

This "Know Your Rights" web resource and any information herein (collectively, the "Services") do not provide legal advice and do not create an attorney-client relationship. Nothing in the Services or anywhere else on pogo.org should be construed as an attempt to offer or render a legal opinion or otherwise engage in the practice of law.

The legal information provided on this website and in the Services are of a general nature and are not meant to be a substitute for the advice of a licensed professional (i.e., a competent authority with specialized knowledge who can apply it to the particular circumstances of your case).

No warranty

POGO reserves the right to make changes, corrections, and/or improvements to the Services at any time and without notice. No warranty whatsoever is made for any of the information displayed in the Services. Statutes, regulations, and other laws can change.  A law may have been modified or overturned by subsequent developments since an entry was made.

In addition, POGO disclaims any and all liability for damages incurred directly or indirectly as a result of errors, omissions, or discrepancies.

What type of federal sector employee are you?

As a federal executive branch civilian employee*, are you seeking to make a disclosure or file a complaint of retaliation? As a Federal Bureau of Investigation employee, are you seeking to make a disclosure or file a complaint of retaliation? As a federal Intelligence Community employee, are you seeking to make a disclosure or file a complaint of retaliation? As a uniformed member of the armed services, are you seeking to make a disclosure or file a complaint of retaliation? As a federal contractor*, are you seeking to: make a disclosure or file a complaint of retaliation? As a federal Intelligence Community contractor, are you seeking to make a disclosure or file a complaint of retaliation? This resource is intended to educate federal sector employees about whistleblower protections applicable to them. If none of these categories apply to you, POGO has collected a list of law firms, advocacy organizations, and other whistleblower resources that may be helpful to you or learn more about reporting wrongdoing to POGO

Disclosure is the underlying problem an employee blows the whistle on, such as a waste of taxpayer dollars; a substantial and specific threat to public health or safety; or a violation of law, rule, or regulation.

Retaliation is the hostile act or acts an employee faces in their job after blowing the whistle. Generally, government investigators looking at retaliation claims focus on the employment actions whistleblowers face, such as being fired or demoted or having job responsibilities taken away.

Official disclosures vs. Retaliation tooltip content goes here.

Most federal employees can make protected disclosures to a wide variety of channels within the federal government, including Congress, Inspectors General, the Office of Special Counsel, and internally in your agency. Unless the disclosure involves classified information or other information prohibited by law from public distribution, federal employees can also legally make disclosures to the press and the public. Seek advice before revealing classified or sensitive information.

Statutory whistleblower protections (5 U.S.C. 2302(b)(8)) protect disclosures when there is a reasonable belief of:

  • A violation of law, rule, or regulation;
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority;
  • Substantial and specific danger to public health and safety; or
  • Censorship related to scientific integrity that evidences one of the above categories.

You also are protected (5 U.S.C. 2302(b)(9)) for the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation (such as an Equal Employment Opportunity complaint); testifying for or otherwise lawfully assisting any individual in the exercise of an appeal, complaint, or grievance; cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel; and for refusing to obey an order that would violate a law, rule, or regulation.

If you believe you have been retaliated against after making a protected disclosure, the primary federal office to seek relief is the U.S. Office of Special Counsel (OSC). If OSC closes your case without resolving your complaint to your satisfaction or 120 days have passed since you filed with OSC, you can appeal to the Merit Systems Protection Board (MSPB) and receive a fresh review of your retaliation claim (assuming that OSC was aware of your protected activities and the retaliatory personnel actions).

If the adverse employment action you have faced is severe (also known as an “adverse action)—such as unpaid suspensions in excess of 14 days, demotion, or termination—you can also appeal directly to the MSPB and skip OSC. But note that there is an election of remedies (a choice among options to seek redress) and electing one remedy will waive other remedies. Before waiving a remedy, seek advice and make sure you aware of your options.

FBI employees can make protected disclosures to the Justice Department’s Office of Inspector General, the Department’s Office of Professional Responsibility, the FBI Office of Professional Responsibility, the FBI Inspection Division, any supervisor in their chain of command up to the Attorney General, or to designated employees with the responsibility within the DOJ or FBI for receiving disclosures.

Statutory whistleblower protections (5 U.S.C. 2303) protect disclosures when there is a reasonable belief of:

  • A violation of law, rule, or regulation;
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority;
  • Substantial and specific danger to public health and safety; or

If you believe you have been retaliated against after making a protected disclosure, the federal offices that can investigate your retaliation claim are the Justice Department Office of Inspector General and Office of Professional Responsibility. Findings of retaliation and recommendations are sent to the Justice Department’s Office of Attorney Recruitment and Management to determine whether to reverse the adverse employment actions and other appropriate actions to make the whistleblower whole.

Intelligence Community (IC) employees can make protected disclosures to a supervisor in the employee's direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures.

Presidential Policy Directive 19 protects disclosures when there is a reasonable belief of:

  • A violation of law, rule, or regulation;
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority; or
  • Substantial and specific danger to public health and safety

IC employees are also explicitly protected under Presidential Policy Directive 19 if they make disclosures to Congress by following the procedures laid out in the Intelligence Community Whistleblower Protection Act (ICWPA).

The IC is defined by the law as the Central Intelligence Agency, Defense Intelligence Agency, National Imagery and Mapping Agency, National Reconnaissance Office, National Security Agency, Federal Bureau of Investigation, and any other agency designated by the President as having an intelligence function. The ICWPA addresses CIA contractor employees in 50 U.S.C. §3517(d)(5), while the law addressing the other agencies is at 5 U.S.C. app. §8H.

The ICWPA is for disclosures of "urgent concern," defined as:

  • A serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinion concerning public policy matters;
  • A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; and/or
  • An action, including a personnel action described in section 2302(a)(2)(A) of Title 5, constituting reprisal or threat of reprisal prohibited under section 7(c) of the Inspector General Act of 1978, as amended, in response to an employee reporting an urgent concern.

The ICWPA procedure requires employees go to their agency Office of Inspector General first. The Office of Inspector General is required to make a credibility determination within 14 days. If found credible, the disclosure is sent to the agency head, who then has to inform the congressional intelligence committees within 7 more days. There are additional procedures for the employee to go directly to these congressional committees if the Office of Inspector General deems the disclosure not to be credible.

Presidential Policy Directive 19 also protects IC employees who exercise of any appeal, complaint, or grievance related to their protected disclosures; lawfully participate in an investigation or proceeding regarding a protected disclosure; and cooperate with or disclosing information to an Inspector General conducting an audit, inspection, or investigation.

If you believe you have been retaliated against after making a protected disclosure, the primary federal office to investigate your retaliation claim is your agency Office of Inspector General. If you disagree with the Office of Inspector General’s investigative finding, you can appeal to the Intelligence Community Inspector General External Review Panel. Findings of retaliation and recommendations are sent to the agency head to determine whether to reverse the adverse employment actions and other appropriate actions to make the whistleblower whole.

Uniformed members of the armed services can make protected disclosures to Congress; Offices of Inspector General; a member of a Department of Defense audit, inspection, investigation, or law enforcement organization; any person or organization in the chain of command; a court-martial proceeding; or any other person or organization designated to receive disclosures.

Statutory whistleblower protections (10 U.S.C. 1034) protect disclosures when there is a reasonable belief of:

  • A violation of law or regulation, including a law or regulation prohibiting rape, sexual assault, or other sexual misconduct in violation of sections 920 through 920c of this title (articles 120 through 120c of the Uniform Code of Military Justice), sexual harassment, or unlawful discrimination.
  • Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
  • A threat by another member of the armed forces or employee of the Federal Government that indicates a determination or intent to kill or cause serious bodily injury to members of the armed forces or civilians or damage to military, Federal, or civilian property.

If you believe you have been retaliated against after making a protected disclosure, the federal office that can investigate your retaliation claim is your military service’s Inspector General or the Defense Department Office of Inspector General (or the Department of Homeland Security Office of Inspector General in the case of members of the Coast Guard). Findings of retaliation and recommendations are sent to the agency hear to determine whether to reverse the adverse employment actions and other appropriate actions to make the whistleblower whole.

Military service boards for the correction of military records are also venues where uniformed members can seek to reverse adverse personnel actions.

Employees of government contractor, subcontractor, grantee, or subgrantee (excluding the Intelligence Community) as well as personal service contractors can make protected disclosures to Congress; Offices of Inspector General; the Government Accountability Office; an employee at the agency responsible for contract oversight or management; an authorized official of the Department of Justice or other law enforcement agency; a court or grand jury; or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

Statutory whistleblower protections (For Defense Department and NASA employees, see 10 U.S.C. 2409; for other contractor employees, see 41 USC 4712) protect disclosures when there is a reasonable belief of:

  • Gross mismanagement of a contract or grant, a gross waste of agency funds, an abuse of authority relating to an agency contract or grant, or a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant.
  • A substantial and specific danger to public health or safety.

If you believe you have been retaliated against after making a protected disclosure, the federal office that can investigate your retaliation claim is the agency’s Office of Inspector General. Findings of the investigation are sent to the contractor employee, the contractor concerned, and the head of the agency for appropriate action.

Intelligence Community (IC) contractor employees do not have retaliation protections for making disclosures—except for the ability to challenge revocation of their security clearance. However, there are legal means for them to make some disclosures through protected channels. This means, while have no real recourse if they face adverse employment actions as retaliation, they are unlikely to face criminal penalties under the Espionage Act if they make solely make their disclosures to protected channels. The process is laid out under the Intelligence Community Whistleblower Protection Act (ICWPA; the name is a misnomer since there are no “protection” provisions in the law).

The IC is defined by the law as the Central Intelligence Agency, Defense Intelligence Agency, National Imagery and Mapping Agency, National Reconnaissance Office, National Security Agency, Federal Bureau of Investigation, and any other agency designated by the President as having an intelligence function. The ICWPA addresses CIA contractor employees in 50 U.S.C. §3517(d)(5), while the law addressing the other agencies is at 5 U.S.C. app. §8H.

Contractor employees working on contracts for these agencies can make a disclosure under the ICWPA if the disclosure is a matter of “urgent concern,” defined as:

  • A serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinion concerning public policy matters;
  • A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; and/or
  • An action, including a personnel action described in section 2302(a)(2)(A) of Title 5, constituting reprisal or threat of reprisal prohibited under section 7(c) of the Inspector General Act of 1978, as amended, in response to an employee reporting an urgent concern.

The ICWPA procedure requires contractor employees go to their agency Office of Inspector General first. The Office of Inspector General is required to make a credibility determination within 14 days. If found credible, the disclosure is sent to the agency head, who then has to inform the congressional intelligence committees within 7 more days. There are additional procedures for the employee to go directly to these congressional committees if the Office of Inspector General deems the disclosure not to be credible.

There currently are no retaliation protections for Intelligence Community contractor employees that enable them to challenge personnel actions at their company, such as terminations or demotions. However, intelligence community contractors do have the ability to challenge revocation of their security clearance under Presidential Policy Directive 19.

While there is no real recourse if Intelligence Community contractor employees face adverse employment actions as retaliation, they are unlikely to face criminal penalties under the Espionage Act if they make solely make their disclosures through protected channels to individuals authorized to receive the information.