News from Congress: On October 26, 2017, new whistleblower protection legislation was signed into law as Pub.L. 115-73. The statute makes several important changes to whistleblower reprisal protections for federal employees.
Pub.L. 115-73 was passed in response to the suicide of noted Department of Veterans Affairs whistleblower Dr. Christopher Kirkpatrick, after whom it is named. The statute makes several additions to present whistleblower protection statutes, including:
Section 102 provides that, if an employee (including a probationary employee) is covered by a whistleblower reprisal stay issued by the Merit Systems Protection Board, then the head of the employing agency is required to give priority to any request by the employee for a transfer. Section 102 also calls for a study by the Comptroller General concerning retaliation against probationary employee whistleblowers.
Section 103 adds a new 14th Prohibited Personnel Practice, prohibiting employees from accessing the medical records of other employees or applicants in connection with any other Prohibited Personnel Practice. According to the legislative history (S.Rep. 115-44), this revision was prompted by alleged incidents where Department of Veterans Affairs (DVA) medical records for federal employee whistleblowers were accessed to look for information that might be used to discredit the whistleblowers, a common risk given the number of veterans who work in federal service and receive their medical care from DVA.
Section 104 requires agencies to initiate adverse action proceedings against supervisors who have been found to have engaged in certain specified Prohibited Personnel Practices by the head of the agency, the MSPB, the Office of Special Counsel (OSC), a judge or the agency’s Inspector General. Minimum penalties are a 3 day suspension for the first offense, and a removal for the second offense. Accused supervisors have 14 days to respond. If no response is received, the adverse action can be imposed immediately; if a response is received, the adverse action can be imposed as soon as the responsive evidence is reviewed. Determinations must be made by the head of the agency personally, and cannot be delegated.
Section 105 requires agencies to notify OSC of any instances where an agency employee commits suicide after blowing the whistle and then receiving an adverse personnel action.
Sections 106-107 mandate training on whistleblower reprisal protections for supervisors. Training is required annually, as well as on first appointment as a supervisor. This training requirement is to be overseen by OSC and the agency’s Inspector General or chief ethics official. Section 107 also requires DVA to develop plans to limit DVA employees’ improper access to the DVA medical records of other DVA employees.