GAP and the Make It Safe Campaign continue to advocate for a final bill that resolves the following conceptual issues:
1. Court Access. Since 1989, the WPA has provided a favorable burden-shifting framework for whistleblowers. Under that framework, the employee demonstrates liability by proving by a preponderance of the evidence that the employee’s whistleblowing was a “contributing factor in the agency’s decision to take a personnel action. The employee must merely show that the protected conduct (whistleblowing) contributed to the agency’s decision. Once the whistleblower makes that showing, the agency loses unless it proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the employee engaging in protected whistleblowing activity.
S. 743 would lower the agency’s burden of proof to a preponderance of the evidence standard, thereby further diminishing the prospects of whistleblowers prevailing in WPA retaliation actions. It also would give employers a 20-30% handicap to prove pretexts against whistleblowers. The amount of evidence to provide independent justification by a preponderance of the evidence is 50%+, while the bar is 70-80% for clear and convincing evidence.
Nearly all whistleblower laws since 1988 have duplicated the current WPA CCE burden of proof, from state and local governments and eleven federal corporate law precedents, up to the World Bank and United Nations. If enacted, all new whistleblower laws likely will repeat the WPEA’s lower bar for pretexts when whistleblowers go to court.
The House bill (HR 3289), by contrast, does not give employers a handicap for pretexts, but it also deprives them of the right to a jury trial. Bench trials presided solely by a judge are hostile toward whistleblowers, compared to a jury of the citizens they purport to defend.
All corporate whistleblower laws passed since 2002 have provided for both jury trials and WPA burdens of proof. There is no excuse for those who defend the taxpayers to have second class court access, compared to those who defend the public.
2. Appellate Review. Both S. 743 and HR 3289 allows the Office of Personnel Management (OPM) to keep the Federal Circuit monopoly for any case in which it intervenes as significant to merit system. That was the scenario for “irrefragable proof,” and most of the other hostile decisions at the Federal Circuit, that sparked this legislation … and this surreal history could repeat itself under S. 743. Again, there is no record to support removal of all circuits review (Senate) or D.C. Circuit review (House) for significant cases. The final bill will be the object of justifiable ridicule if this loophole remains and the Federal Circuit is free to cancel federal whistleblower rights for a fourth time. The consensus within the whistleblower community also is that “all circuits review” is preferable to the vulnerabilities from a different court having near monopoly powers, as specified for the D.C. Circuit in the House bill. All corporate whistleblower laws have had all-circuits-review since 1974, without any meaningful adverse side effects. Monopolies always should be avoided if possible, and federal government whistleblowers should not have second class access to appeals court.
3. Action to Correct a Provision that Rolls Back Current Administrative Due Process Rights: S. 743 would enable administrative dismissals without a due process hearing by providing summary judgment authority to the Board. The MSPB currently relies on a summary judgment hybrid that provides equivalent results screening out cases to EEOC and Department of Labor track records for discrimination and corporate whistleblower laws, respectively – all around 75%. The Board’s hybrid, however, does not require costly depositions in advance of a ruling to pass muster for a hearing. Summary judgment routinely does, and those expenses can be unrealistic for an unemployed whistleblower. This change would roll back administrative due process rights without any record since 2003, when prior Chair Neil McPhie asserted the recommendation without research support
4. Institutionalizing the stimulus contractor whistleblower provision. Nothing could do more to shield misuse of taxpayer funds than codifying credible rights to replace the current token protections available for whistleblowers employed by government contractors. Government contracts always have been the universal magnet for corruption. Further, many government civil service functions are now performed by contractor employees who have no accountability to the taxpayers – only to the contractors for whom they work. The stimulus bill included best practice whistleblower rights for contractor whistleblowers receiving those funds. It has worked without any reported disruption of management functions under the stimulus law. It passed unanimously in 2009 as a noncontroversial provision – unlike the WPEA. In whatever form of freestanding WPEA that survives, it should be codified to include all government contracts and made permanent.
In HR 3289, the House has made a head start in that direction by expanding a provision in current law that provides jury trials to defense contractors. (10 USC 2409) Unfortunately, unlike the stimulus law that provision does not protect those who disclose abuse of authority, does not include legal burdens of proof that set the bar to win, does not include override gag orders or waivers of statutory due process rights that frequently are a job prerequisite, and does not provide compensatory damages. The House provision must be upgraded to provide reliable protection. The current defense contractor provision is almost dormant due to its weaknesses.