Newly Introduced Bill Extends Federal Whistleblower Protections to TSA Employees
This article features our client Jay Brainard and was originally published here.
On February 5, a group of senior Democrats in the United States House of Representatives reintroduced The Rights for the Transportation Security Administration Workforce Act. The Act would extend the federal workplace rights of Title 5 of the U.S. Code, which include whistleblower protections, to employees of the Transportation Security Administration (TSA).
Congress established the TSA in response to the terrorist attacks of September 11, 2001, and exempted the agency from Title 5 of the U.S. Code. The exemption granted the agency broad authority over its personal management system, such as determining employee pay and benefits and firing and disciplining workers. The newly introduced bill would require the TSA to conform to Title 5 personnel policies within 180 days of enactment, granting TSA employees the workplace rights and protections afforded to most other federal employees. The bill would therefore establish full federal sector collective bargaining rights for TSA employees and tie their pay to the General Schedule (though the bill stipulates that no employee’s pay will be reduced as part of the transition to the General Schedule pay scale).
By granting TSA employees Title 5 status, the bill would also extend the federal whistleblower protections established by the Whistleblower Protection Act (WPA) to TSA employees. These protections prohibit federal agencies from taking adverse action, such as termination or reassignment, against an employee in retaliation for the employee making a protected disclosure. Protected disclosures under the WPA are broadly defined and include reporting possible violations of the law, gross mismanagement or waste of funds, or abuse of authority. Under the WPA, federal employees may file retaliation claims with the independent Merit Systems Protection Board (MSPB). However, the current lack of quorum at the MSPB and the resulting massive backlog of cases has severely undermined these protections.
The bill was introduced by Representatives Bennie Thompson (D-MS), Rosa DeLauro, (D-CT), Peter DeFazio (D-OR), Carolyn Maloney (D-NY), Bonnie Watson Coleman (D-NJ), and Lucille Roybal-Allard (D-CA). A past version of the bill passed the House in March 2020 but was not approved by the Senate.
In a statement, Representative Thompson said: “[w]e owe it to the officers who serve on the front lines of our transportation systems and defend our country against threats to provide them with appropriate pay and protections. We also owe it to the flying public to continue to develop TSA into the professional, capable national security agency that Congress originally envisioned.”
Proponents of the Act have pointed to the ongoing COVID-19 pandemic as an urgent reason why TSA employees need Title 5 status. According to data released by the TSA, 6,570 TSA employees have contracted COVID-19 and 15 have died from the virus. In July, the TSA ordered new COVID-19 safety precautions for employees after meeting with whistleblower Jay Brainard.