On June 23, 2017, the President signed into law the “Department of Veterans Affairs Accountability and Whistleblower Protection Act.” The title has a nice ring to it, but it is somewhat misleading. For most rank and file VA employees, the most significant effect of this law is a drastic reduction in their notice and appeal rights in the event they are accused of poor performance or misconduct. There may be, though, a silver lining to this dark cloud.
In an attempt to gain support for this legislation, lawmakers included provisions intended to protect whistleblowers in the VA from retaliation. Protection of whistleblowers is a desirable goal, and especially important in an agency that has seen a number of scandals brought to light by whistleblowers in recent years. The new law includes a provision that, “In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of Title 5, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of Title 5.” There is a similar provision for employees who have made whistleblower disclosures to the Assistant Secretary for Accountability and Whistleblower Protection.
Employees who have blown the whistle, therefore, have some additional protection from the fast track disciplinary actions permitted under the new law. Disclosures of wrongdoing can be filed or reported to the Office of Special Counsel at www.osc.gov. Any whistleblower disclosure made by an employee should be shared with the employee’s chain of command right away to help ensure protected status. After all, to be protected, the employee must blow the whistle before retaliation occurs, and the management official taking the action has to be aware of the disclosure.
An employee who is considering blowing the whistle, should review carefully (preferably with legal advice) whether your disclosure will be protected. Under the law, the term “whistleblower disclosure” means “any disclosure of information by an employee of the Department or individual applying to become an employee of the Department which the employee or individual reasonably believes evidences — (A) a violation of law, rule or regulation or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
If, after making such a disclosure, the employee experiences unlawful retaliation, including proposed disciplinary action, they should immediately report the retaliation to the Office of Special Counsel and request a stay of any personnel action. Employees should seek advice from an experienced federal employment lawyer as quickly as possible when filing with Office of Special Counsel, to help ensure that their disclosures are accurately and completely reported in their filing. Please contact the law office of Bonney, Allenberg & O’Reilly to schedule an initial consultation.