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Tim Curry: Welcome. My name is Tim Curry. I'm the Deputy Associate Director for Partnership
and Labor Relations here at the US Office of Personnel Management. Our office presents
round tables in support of our ongoing effort to bring relevant and reliable developmental
opportunities for federal sector employee and labor relations practitioners.
It gives me great pleasure to welcome you to today's round table entitled, "Whistleblower
Protection Enhancement Act of 2012 and Prohibited Personnel Practices." In addition to the participants
here at OPM, we're joined by webcast ears from around the country.
Today's presenters Shirine Moazed and Adam Miles from the US Office of Special Counsel,
who will share with you information about the US Office of Special Counsel and it's
mission to safeguard the Federal government from prohibited personnel practices and other
activities prohibited by civil service law, rule, or regulation.
Their presentation will provide an introduction to the mission and structure of the Office
of Special Counsel, the requirements of the prohibited personnel practices, and the key
reforms of the Whistleblower Protection Enhancement Act of 2012, which was signed into law just
a few months ago in November 2012.
I encourage everyone to make the most of today's round table, including asking questions of
our presenters. Webcast participants may do so by sending an email to PLR@opm.gov. We
will try our best to field as many questions as possible. For those here at OPM, please
wait until a microphone is brought to you so that our webcast viewers can hear your
questions.
Your packets contain biographies for Shirine and Adam, two PowerPoint presentations, and
an evaluation form. Please take time to complete the evaluation form before you leave today.
Feedback is important to us and helps up plan future round tables.
Webcast viewers, please fax your forms to our office at 202-606-2913. Is that 2913?
2613. OK, my old eyes. Sorry folks. If you're viewing this with your colleagues, please
gather your evaluation forms and fax them together and let us know they are from a single
location.
Now to our main event. We are pleased to have as our speaker Shirine Moazed and Adam Miles.
Shirine is the chief of the Washington field office of the Office of Special Counsel. In
that capacity, Shirine supervises a staff of attorneys and investigators in enforcing
the Whistleblower Protection Enhancement Act and investigating and litigating prohibited
personnel practices.
Adam is a Director of Policy and Congressional Affairs at the Office of Special Counsel and
has expert knowledge about the Whistleblower Protection Enhancement Act of 2012. Prior
to joining the Office of Special Counsel, Adam was on the staff of the House Committee
on Oversight and Government Reform.
Please join me in welcoming Shirine Moazed and Adam Miles.
[applause]
Shirine Moazed: Thank you so much Tim. I want to thank all of you and the webcast viewers,
of course, for joining us today. This is really exciting for Adam and I because using OPM's
wonderful technology, this is probably the largest audience that we've had to reach out
to and train on prohibited personnel practices and especially the Whistleblower Protection
Enhancement Act.
We're really excited. I also just want to mention that Cynthia Louise and LaShawn Freeman
have been working tirelessly to organize this presentation. I want to recognize them.
Just to give you an idea of our structure and what we're going to go over today, I'm
going to give you the overview of the Office of Special Counsel. I'm going to talk to you
about the 13 prohibited personnel practices and give you some examples. Hopefully those
examples will help you in advising management and employees and avoiding pitfalls and potentially
violating the Whistleblower Protection Act.
Adam is going to, after I'm finished, he's going to go over the recent modification and
changes in the law based on the Whistleblower Protection Enhancement Act. I encourage you
to stop me at any time to ask questions. There isn't going to be a specific time for questions.
I found that in these presentations it makes it so much more interesting, if we can talk
about particular situations or circumstances at your agency, how you've handled it, and
our take on what could or could not be a potentially prohibited personnel practice.
Adam: Oh, and also we understand that people on the web are able to write in questions.
Cynthia, if you want to read those as they're coming in, that's fine with us. I think it'll
break it up and it'll be a more interesting presentation.
Shirine: What I'm going to try to remember to do is let you know what slide I'm on. The
PowerPoint presentation that was sent deals with not just the prohibited personnel practices
but also cover the disclosure unit. We're going to focus specifically on the prohibited
personnel practices with an emphasis on whistleblower retaliation and some of the hiring prohibitions.
If you'll skip to slide three...
Sorry it takes a little time. What is our authority? This is an overview for some of
you who are well familiar with the Office of Special Counsel. But for those of you who
are new to this area, under the Whistleblower Protection Act and the Enhancement Act, we
investigate and potentially prosecute allegations of prohibited personnel practices.
What does that mean? Well, that means for instance if an employee alleges that they've
been retaliated against for making a disclosure, for instance that their supervisor grossly
mismanaged funds, then they have the opportunity to file a complaint with our office.
If a personnel action has been taken as a result of that disclosure, for instance if
they were suspended because in part they made a disclosure, they were a whistleblower, then
what we can do is investigate and if warranted seek corrective action.
We get that employee the suspension rescinded from their record. They're paid for that amount
of time. And potentially, if they have attorney's fees and other types of damages, Adam's going
to talk about changes in damages under the Whistleblower Protection Enhancement Act.
But those are the types of remedies that we can seek for employees.
Our other authority, which is a little bit unique in the Federal government, is that
we can seek disciplinary action against the official or officials who committed the prohibited
personnel practice. That can include, sometimes, employees and human resource offices or employee
relations offices depending on their role in, for instance, a hiring or promotion prohibition.
So it doesn't apply just to direct supervisors.
Now let's move to slide six.
What are agency responsibilities? These are all of our responsibilities, but especially
responsibilities I think in the divisions that you work in, guiding managers, advising
managers. It's to ensure that employees are aware of their rights and remedies under the
Whistleblower Protection Act.
Also to ensure to the extent that you can, and this is difficult I know especially for
employees in human resource offices and employee relations, to ensure that managers are not
violating the Whistleblower Protection Act.
We understand that sometimes there's pressure that's brought to bear on especially HR officials,
for instance in hiring prohibitions. A manager wants one particular individual hired, and
you have to essentially educate them on the competitive procedures. So this is an area
that we think you all play a really pivotal role in ensuring that managers are to the
extent possible following the procedures and the law.
So now let's skip to slide eight. It's going to be really hard to go through 13 prohibited
personnel practices. So what I'm going to do is focus on some general categories that
you see up on this screen in two primary areas, the hiring prohibitions and the retaliation
prohibition.
Adam's going to cover the new 13th prohibited personnel practice, because that was one that
was added under the Whistleblower Protection Enhancement Act. But it's just important to
know that there is a new prohibited personnel practice. And again, for the purposes of the
Office of Special Counsel, it's important for you all to know that our most commonly
filed complaint is in two areas, retaliation and hiring and promotion violations. We receive
probably around 70 percent of the complaints that come into our office are in those two
types of prohibitions.
First let's talk a little about the discrimination category of prohibited personnel practices.
So as you might be aware, we have the same authority to look at discrimination based
on protected categories as TItle VII. But because that process already exists for employees
to utilize, the EEOC process, for the most part we defer those types of allegations.
For the most part, that's our general policy under regulation.
However, we do have two areas where we do receive allegations that aren't covered under
Title VII, and that's discrimination based on marital status and political affiliation.
So just something to keep in mind if you have an employee or a manager and you suspect that
they are considering something such as the employee's political affiliation when either
making a decision to promote or to hire, that you need to inform that of course they can't,
that that is prohibited under the Whistleblower Protection Act.
The other area of discrimination is discrimination based on conduct that's not related to your
work performance. Let me give you two examples there. We have a manager who is not very fond
of guns. He has an employee who he knows belongs to the NRA, and he begins to take personnel
actions against that employee.
If it's not at all related to that employee's work performance, that is a prohibited basis.
It's nothing that has anything to do with their performance or their ability to whatever
the goals of their particular job are. Another type of example is a manager who discovers
that an employee is gay and begins to take actions because of that employee's ***
orientation.
Some types of discrimination that we've seen raised at the Office of Special Counsel are,
for instance, changing the employee's work schedule from a day shift to a night shift.
We had an employee alleged that their arrival at the workplace was monitored to such an
extent that the supervisor was tracking when they were two and three minutes late.
The allegation was certainly that that person was being targeted, was being treated differently
than the other employees, and the allegation was that it was based on her *** orientation.
That is another type of complaint that we receive at the Office of Special Counsel.
Are there any questions on the discrimination category? OK. Let's move on to slide 11. What
you see on this slide are the various categories of the hiring prohibitions. I'm going to spend
some time going over unauthorized employment preference, because again that is one of our
most popular allegations and one that probably involves ER and HR more than some of the other
allegations.
But just as a reminder, nepotism, believe it or not we still continue to get allegations
that officials are hiring or advocating for the hiring of their relatives, that their
also involved in employee benefits for their relatives. What you need to keep in mind is
that's two different types of nepotism. One is the direct hiring. The other is influencing
another manager with respect to your relative's, again, benefit of employment.
We had a case about a year and half ago where the allegation was that a manager went to
another manager who had supervisory authority over the outside manager's wife. This particular
manager influenced the supervisor to increase the bonus by 100 percent, and that allegation
was corroborated. That is an allegation of nepotism and clearly a fairly severe one.
Now on the more subtle range of nepotism, we also have allegations that there are supervisors
or managers who don't supervise their relative but still have authority over things like
their schedule. They don't do performance reviews. They don't do bonuses, but perhaps
they set the telework schedule. That could still fall within a nepotism allegation.
You want to make sure, and ER and HR and attorneys who are advising management, that a supervisor
who is known to have a relative somewhere on the staff is completely walled off from
making any decisions with respect to his or her relative.
OK, let's move to slide 12. So those are the statutory definitions, and I'm not going to
read them for you since they're up there on the screen. But I do want to give you an example,
and then we can talk about some pitfalls and things to avoid in hiring and promotion allegations.
This is an example I've used before, because it covers all three of these prohibitions.
It's an easy way to show, here's a factual scenario where an official can actually violate
all three of these prohibitions.
In this particular example, we had a manager who was in charge of the selection for a construction
position. In this particular position, the same position was advertised on USA Jobs in
two different geographic locations. They were fairly close by, but nevertheless two different
areas.
This was under the old veteran's preference requirements. In this particular vacancy announcement,
a disabled veteran came up to the top of the list for both positions in each geographical
area. The supervisor had a favored candidate that he wanted to hire, and the veteran was
blocking his hiring of that candidate.
So here's what he did. He called the veteran into his office, and without telling him that
he came to the top of the list for both positions, he told him he came to the top of the list
in one position. He said, "So, now that you're at the top of the list, don't you want to
go ahead and withdraw from the other position?" The veteran is like, "Do you know what's going
on with that position?"
The manager just played ignorant and didn't respond to his question. So, the veteran agreed
to withdraw from the second position, which permitted the preferred candidate to come
up to the top of the list. Then, the manager selected that preferred candidate.
Of course, I've shrunk the facts down. There was a lot going on in that case, but that's,
actually, an example that falls within all three of the prohibitions. There was deceit
there. In the competition he deceived the veteran by not informing him that he, in fact,
came to the top of the list in both instances.
He influenced him to withdraw from competition for the second position, and, then, he provided
an unauthorized preference. By influencing the veteran to withdraw, permitted him to
select his favorite candidate. We do still see situations, even under the new veterans
preference requirements, where managers are not following those requirements. That's not
the only type of obstruction of right to compete, but that's just one example. We continue to
see those.
Another recent example that I want to give you, it's a little more subtle. It was still
one that we determined an unauthorized employment preference occurred is one where there was
a vacancy announcement issued for a position. There was a competition. There were interviews,
and a candidate was selected. There was nothing wrong with that initial process. That candidate
moved across the country for the position. She wasn't in the local area.
She was in the job for two weeks when HR discovered that they made an error. Under the process
that they had selected her, it was not appropriate. The manager and HR were faced with this very
difficult decision. They had had someone move, potentially lose money, and could lose her
job, because now she was in a job that they hadn't filled appropriately.
The HR official advised the manager to issue a new vacancy announcement, and, hopefully,
they would be able to select the person when they issued the no vacancy announcement. Unfortunately,
the employee that had been selected under the prior announcement did not make the best
qualified list.
Here's where the manager fell into a trap. The HR official came to the manager. They're
trying to correct an error. They said "well, we have a way to do it. We have her resume,
and we'll just put in new KSAs that fit within the former selectee's education and background."
They issued that vacancy announcement.
That falls strictly within B6. The fact that the manager was actually trying to correct
an error, and the employee did qualify for the position did not mean that the way the
went about correcting that position was legal. Certainly, that type of case would require
a lot less disciplinary action than a case where, the other veteran example I gave you,
there was an improper motive to begin with.
What you need to show in an unauthorized employment preference case is that there was intent to
place someone in a position who potentially would not otherwise qualify for that position.
The manager in the case that I just mentioned to you admitted in his interview with the
office of special counsel that the only reason they included the new KSAs in the vacancy
announcement was so that they could select the candidate who had moved across the country.
Yes, they want you to have a microphone, so hold off on your question for just one second.
Adam: While they're doing that, Shirine, I have a question. We get a lot of allegations
that a manager may have a favored candidate. That candidate ends up getting the promotion
or getting the job. Is the fact that the favored candidate gets the job, is that a violation
B6?
Shirine: That's a good question, and it's actually in one of our slides. No, it's not.
A preferred candidate by itself is not going to be a violation of B6. There has to be a
manipulation of the process to provide a preference to one candidate or to harm another candidate.
Participant: My question is what would be the remedy if HR made a mistake, someone's
already hired. They realize that there was a mistake in the selection process. What do
they do at that point?
Shirine: That's a good question. What I would do, because I'm not an expert in the hiring
process, is I would refer someone to OPM. And this did not occur to OPM. If I were that
agency, and I was struggling with this error was made and how do we correct it in a way
that isn't going to provide an unauthorized preference, but that is also not going to
harm this employee.
We could certainly advise the office of special counsel. That may fall within an unauthorized
preference, but what we can't tell you is all the different remedies for correcting
a hiring situation. Unfortunately, that's not our background. There are certainly offices
within OPM that I would refer someone to.
Participant: Thank you.
Shirine: Now lets move to slide 14. Actually, oops sorry. Lets move to slide 13. This was
the point that Adam was just making. A preferred candidate by his or herself is not enough
to meet the requirements of a violation of unauthorized employment preference. What you
see here is that there has to be a granting of an illegal advantage.
Generally, what the merit system's protection board reviews, which is the administrative,
judicial agency that would look at those cases, is what was that manipulation? In the cases
before the merit system protection board, oftentimes, you'll see not just one step taken
but numerous steps all taken to benefit one particular candidate.
These are very fact specific cases. One fact by itself. I'm sure there's a case, perhaps,
out there where one action could fall within an unauthorized employment preference, but
in general, there are several actions taken, when you look at it in total, is a manipulation
of the system to benefit one particular candidate.
I can give you another example. We have a case currently before us where we're attempting
to seek disciplinary action from the management official where a management official wanted
to hire a preferred candidate. That by itself isn't enough. The preferred candidate was
an attorney. The job was an investigator position. When the vacancy announcement was issued and
the BQ list came out. Guess what? The attorney didn't make it.
The manager was very upset. He wanted this attorney in the position. So, he went to his
HR office, and he said "Can't we include, as part of the investigator position, a legal
background, legal skills and requirements?" Guess what? The HR office did the right thing,
and they said, "No." They had a description of the position, and that is not required
for the position. You would only be adding that.
He knew he wanted an attorney for the position to benefit this particular candidate. The
management official ignored the HR officials advice, somehow got the vacancy announcement
issued. Fortunately, it was stopped before the employee was hired. But, even that attempt
to hire someone fell within the prohibition. Right now that is a case that is a case that
we are working with on settling with the management official.
Let us move to slide 14. If you look at the first bullet point, again, I focused a lot
on intent. That is to ensure that if there's some inadvertent action that, an HR official
or a manager, they made a mistake in issuing the vacancy announcement. KSAs were included
that shouldn't have been included. None of those hiring prohibitions would be met, because,
of course, we are looking for intent.
There is the catch-all prohibited personnel practice that doesn't require intent. Let
me give you an example. We get allegations from time to time that management have put
caps on the level of rating for performance reviews. There are some regulations that say
that you have to rate someone based on their actual performance.
You can't give your employees, if it's on a numerical scale, anything higher than a
four. You're on a one to five scale. That's an absolute direction. That could fall within
the violation of the catch-all provision. Even though there isn't an intent to harm
or benefit a particular employee, that actual instruction can violate a regulation. That's
how the office of special counsel would view it.
We do get quite a few of those allegations that are not corroborated. Employees file
complaints thinking that there's been a cap set. It turns out that management, as many
agencies will do, will send out something saying "I don't expect to see all of your
employees with fives. Really take a look at it and rate them according to their actual
performance." They'll take an email, and, based on that email, they'll make an assumption
that there's a cap.
The lesson learned from that is to be careful. Certainly, we know what you mean when those
types of emails are sent, but you don't a perception out there that there is some sort
of instruction from higher levels that performance ratings will be capped, not based on their
actual performance but based on a higher level instruction. That's more of an appearance
issue, but one to be aware of.
Now we're going to jump ahead to slide 18. What I'm skipping here are just some more
examples of the unauthorized employment preference prohibition.
This is the catch-all provision that I spoke about earlier. If that's not the most complicated
description of a prohibition... People read that and they say "what does that mean?" I
can tell you factually. As I stated before, an allegation that performance appraisals
are being inappropriately capped could fall within this prohibition.
Another area that's covered under this prohibition are, actually, allegations of first amendment
violations. Let me tell you how that happens. There's a merit system principle which, essentially,
states that all federal employees should be afforded their constitutional rights. Therefore,
when someone alleges that they're being obstructed from, for instance, contacting the press,
that could potentially fall within this catch-all prohibition.
I'll give you an example. We had a professor with the Naval Academy file a complaint with
us, and we have a press release on this case which is why I can talk to you about the name
of the agency. File a case alleging that he wrote a letter to the editor not using his
official title in which he described his disagreement with the minority policies of admission at
the Naval Academy.
He believed there was a bias towards athletes in this admissions policy. The way the Naval
Academy promotions work, it's more like a university setting than are typical. Your
supervisor rates you, and, then, you're promoted. You're actually rated by your colleagues on
a number of factors, your student evaluations, how many classes you teach, and your publishing.
This particular professor's colleagues actually rated him well and rated that he should, in
fact, receive a promotion that year. The dean overrode the rating which had never happened
before. In fact, he had sent some emails to this particular professor stating that he
would be disciplined if he continued to share with the public his views on the admissions
policy.
There's a little more to the assessment of these types of cases, it's not just that you've
gone to the press. It has to be something that's in the public interest. Generally,
when a newspaper publishes an article, you're going to be able to meet that public interest
requirement. The agency, if they can show that it somehow interferes with a critical
mission of the agency, there is a balancing test that the courts look at when reviewing
these cases.
In this particular case, the Naval Academy did provide corrective action to this professor.
That's an odd prohibitive personnel practice, but one you should think about if you're seeing
managers starting to try to take actions against employees for making public things that might
not be whistle blowing but may be matters that are in the public interest.
Before we move on to retaliation, I just wanted to give, especially the webcast viewers, a
little bit of time to ask any questions on the hiring prohibitions or the catch-all prohibition.
Or, of course, anyone here in the room. Were there any questions before we move on to retaliation?
OK.
Retaliation for whistle blowing. I'm going to discuss, in general, the retaliation prohibitions,
and, as you see by this slide, and we're on slide 19, retaliation isn't just protected
when it comes to whistle blowing. There are other areas in which you are protected from
retaliation.
One I always like to point out, because it's very important to the Office of Special Counsel,
is the fourth bullet point. You can't be retaliated against for cooperating with the Office of
Special Counsel or with an inspector general's office at the agency.
We do get quite a few cases where employees allege that they've filed a complaint with
their office of inspector general, or they've cooperated in an investigation. And, after
they're cooperation, management has begun to take action against them. Those cases,
probably, comprise a good percentage of our retaliation cases that aren't based on whistle
blowing.
We're on slide 20. This is probably going to be an overview for many of you. I always
like to cover the elements of whistle blowing, and, then, give you an example of a case.
When Adam discusses the Whistleblower Protection Enhancement Act, he can talk to you about
some new changes that have been made in the area of protective disclosures. As an overview,
lets go ahead and look at the elements.
This is also important to keep in mind when you have an employee who comes to you. or
a manager who says "I don't know. This employee thinks they might be a whistleblower, but
I don't think they're a whistleblower." Just to give you that background, if action were
to be taken against an employee, to let you know and give you some comfort in advising
management officials.
Of course, the first element is that you have to whistle blow. The protected disclosure,
that's another way of saying whistle blowing, has to be in various five or six categories
of information. We'll go over that in a bit more detail later. A personnel action has
to be taken or threatened. Let me just see a show of hands here. Just raise you're hands
if you think the answer is yes. How many of you think that moving an employees office
is a personnel action? How many say yes? OK. Yes! There's some yes's. It could be.
We had a case, which an employee alleged that their office was moved from the sixth floor
to the basement in a room that was affectionately known as the meat locker. One personnel action
under this statute is a significant change in working conditions. Moving an office from
the sixth floor to the fifth floor is not going to meet significant change in working
conditions for the most part. Potentially, moving an office to the meat locker in the
basement could certainly fall within that category.
What about an employee who alleges that one duty has been removed? They're the employee
that is charged with making presentations a few times a year on the duties of their
particular office. Is that one duty change a personnel action? We've got some yes's in
the audience. I'm going to give you the great lawyer answer, maybe.
Under personnel action, a significant change in duties is considered a personnel action.
Significant change doesn't necessarily mean that it has to comprise of fifty percent of
your duties. It could be a very significant duty. If a significant duty is making those
presentations, that, in fact, could meet the description of a personnel action.
The pitfall that I see sometimes with managers in HR offices is they think adverse action
instead of personnel action. It's not necessarily adverse in the way we would, probably, define
adverse action. A reassignment, which doesn't affect pay or geographical location, that's
a personnel action. It doesn't have to be a suspension, a demotion, a type of disciplinary
action, or performance based action.
We have a question.
Participant: How does this correspond, in terms of talking about personnel actions,
to an EEOC complaint where they're talking about changes in the terms and conditions
of employment. Are they fairly similar or are there differences in the way that's defined?
Shirine: That's a good question. I'm not an EEOC expert. My understanding is that it's
much broader in the EEOC realm. Discrimination, it doesn't match up with the description of
a personnel action. Certainly, even under a personnel action, a hostile work environment
could be considered a personnel action. But, the type of discriminatory actions that could
be very minor may not meet the actual description of a personnel action.
For instance, how about a letter of counseling? It doesn't meet the definition of a personnel
action unless included in that counseling is some language that talks about further
disciplinary action. Oral admonishment, generally, does not meet the definition of a personnel
action where, for title seven purposes, those types of things are covered.
Participant: Thank you.
Shirine: The third element, and we're on that third bullet point, is knowledge. There has
to be knowledge, actual or constructive, of the whistleblowing. Does that mean the manager
that took the retaliatory personnel action had to know? No, that's where we go to constructive
knowledge.
I do like to tell this story, because I find it amusing. I had a manager once say to me
"I had no idea that this employee engaged in whistle blowing." That employee had actually
been on "60 Minutes." [laughs] And made his disclosure, and he said he didn't see that
segment of the show. He's always going to meet constructive knowledge.
There's no way that an agency is going to not have discussed an employee who was on
"60 Minutes" alleging some sort of wrongdoing by the agency. Keep in mind that knowledge
is little bit broader than "I, personally, knew that Adam was engaged in whistle blowing."
Last, but not least, the whistle blowing has to be a contributing factor in the personnel
action. What does that mean, contributing factor? That means any factor. When a management
official comes to you and says "I really think I need to move this investigator out of his
position. He's having performance problems. He's not meeting his numbers requirements.
He has some conduct issues. He's a little disrespectful when he speaks to me. He keeps
complaining to the OIG office about things that are going on within the office."
I would hope everyone's red flashing lights would go up, and everyone would inform that
manager that, even though he had other reasons. The fact that he's discussing someone's protected
activity as part of the basis for taking a personnel action, that's a problem. That's
something that you need to keep in mind.
We are certainly aware that, oftentimes, in our cases management has some legitimate basis
for taking action against the employee. What we're looking at is was it a pretext or were
there legitimate bases? Will the agency be able to prove that they would have taken that
same action even if the whistleblowing did not occur?
You're going to hear it far earlier than a case would come to us. You would be able to
have that opportunity, hopefully, to guide the manager and make sure that they're only
using legitimate bases to make their decision on taking a personnel action.
This goes to that first element, what are the categories of protected whistleblowing.
They're laid out by the statute. Some of them, as you can see, are fairly broad. It's not
always easy to determine. When employees file complaints with our office, sometimes they
just send us a narrative. It's up to the attorneys and the investigators who are reviewing the
complaint to determine whether, in fact, their disclosure falls within one of these categories.
One thing I would keep in mind, that may not always be apparent to managers, is even disclosures
that would appear minor could receive protection. That goes mostly to violations of law, rule,
or regulation. Adam's going to talk to you a little about some of the changes and the
statute on looking at that particular category of protected activity.
But, let me give you an example. We had an employee who filed a complaint with our office
that, upon his wife going out on maternity leave, he went to his supervisor. He was in
an agent position. He went to his supervisor and said there were some complications with
his wife's maternity leave, so he wanted to take something like four to six weeks of leave.
He had the leave.
The supervisor said "No, you can have four days of leave." After the supervisor said
no, this particular employee contacted the headquarters. He was out in the field. He
contacted the headquarters Human Resources office and said "my supervisor said that I
can't take this leave. But, I actually think by law I am permitted to take this leave."
Not that big a deal, right? You wouldn't think that that, potentially, would be protected
whistle blowing, but it is. There are leave regulations. There are Family Medical Leave
Act issues. In this particular case, the supervisor found out that the employee had contacted
the headquarters office, and he, in his interview, conveyed to the Office of Special Counsel
that he was annoyed.
He was from a background where people were to follow the chain of command. He did not
like that this employee went above his head, went to the headquarters, and, essentially,
sought another opinion and disclosed that his supervisor had denied the leave.
Even though very minor to some people, and certainly not something that most of us would
think would motivate retaliation, in that particular case we did find evidence to support
that the personnel action which occurred afterward which was a geographical reassignment was
based in part on the fact that this employee alerted the headquarters HR office that his
supervisor would not let him take this leave.
We're on slide 22. People often get hung up on bullet point two. They say "Well, how could
it be whistle blowing, if it's not accurate?" The courts have stated that you just need
a reasonable belief that what you're disclosing meets one of those categories of protected
disclosures. Sometimes people are wrong, but they still have a reasonable belief.
They saw their supervisor's government credit card charges and saw some party supplies on
there and knew of no agency party that was going on. They knew that their supervisor's
child was having a birthday. They put two and two together, and they said "my supervisor's
inappropriately using his government credit card." It turns out later that they're inaccurate.
Based on the facts of the circumstances, even if inaccurate, it could be protected whistle
blowing.
Slide 23. The top bullet point is one we see again and again. I think from your perspective,
if you're advising managers, if you see language on, even if it's an informal counseling that
doesn't meet the definition of a personnel action, you still want to have a manager avoid
saying "you're disciplined for violating the chain of command." If that employee engaged
in protected whistleblowing, there is no chain of command.
Certainly, there are laws such as the Classification Act, classified information, the employee's
going to have to either bring to the Office of Special Counsel or their inspector general's
office. If it is otherwise information that they learned about in their job, but it's
not a violation to release it, there is no chain of command. Yet, we continue to see
documents that are written up.
They're usually letters of reprimand where there's a discussion of the violation of chain
of command in making the disclosure. We understand from a manager's perspective, I'm a supervisor.
I would prefer that an employee come to me first. Right? It's nice to be able to solve
something at the lowest level.
But, what I know and what all of your managers need to know is that you can't discipline
someone for not coming to you first. That might be our preference, but the law protects
against that type of disciplinary action.
I'm going to wrap up quickly and just give you a couple of areas to watch out for, some
pitfalls that we've seen some managers fall into. That's, also, in the letter of reprimand
disciplinary action field where we see documents where the manager is writing up the employee,
and they say "I didn't write them up, because they were making a disclosure. I wrote them
up because of the manner in which they made the disclosure."
There's a case, which essentially says that protection is not lost when subject matter
is stated in a blunt manner. In that particular case, the employee was charged with insubordination
for the way in which he was disclosing his whistle blowing. You need to be really careful.
What the courts have done is they said "most of the time when you're whistle blowing you
might be a little angry. You might be less apt to be as neutral and as objective as you
otherwise would be when you're talking to others and releasing information." That could
be a trap. A manager might be annoyed that they could have been a little more neutral.
Maybe they were too blunt, but that's an area to be aware of. The caveat here is when they're
making a protected disclosure. Courts are going to give a little leeway for that employee
to be more blunt than we would otherwise be in our normal professional dealings.
The other area that I've seen in recent...
This is more focused on disciplinary actions that agencies have taken against employee,
is when you're writing up charges against an employee and you're advising managers.
You really want to ensure that there had been a diligent investigation into the charges.
We had a case where employees were charged with watching what was called an obscene movie.
They had a break room and they were permitted to watch movies on their breaks. The actual
facts of the situation, once the Office of Special Counsel investigated, the two employees
who were terminated didn't bring the movie in. Didn't place the movie into the video
player, and it was an R rated movie.
So had there been more of an investigation into the actual circumstances...
It certainly finds that when you first read it. "Wow, you shouldn't be watching an obscene
movie in the workplace, and if these employees were responsible, then clearly management
should take action."
But delving into the actual facts, what it demonstrated was that there was not a diligent
investigation into the charges, and that, the courts have determined is circumstantial
evidence of retaliatory motive.
If you can help that manager stop before they write up a charge which you feel hasn't really
been sufficiently investigated, that would be a huge help to your agency to and to your manager.
Participant: Good afternoon.
Shirine: Hi.
Participant: What percentage of the complaints that come to your office are investigated?
What are the numbers of your staff? How many professional investigators or attorneys do
you have who will respond and investigate permitted personal practices and WPA complaints?
Shirine: That's a good question. I'm going to give you approximate, because I don't have
the exact numbers. We get about 3000 complaints total of all prohibited personnel practices
a year. Of that group, about 60 to 70 percent include retaliation allegations. Often, many
allegations are included, so it wouldn't just be retaliation.
Of those 3000 or so complaints, the number that are referred for a full investigation
to our investigation prosecution division is approximately 10 percent. Sometimes it's
a little bit higher. It depends on the year, but approximately 10%.
The staff in the investigation prosecution division... We're in four field offices. We're
in DC, Dallas, Detroit, and Oakland. We also have what's called a Retaliation Pilot Project
staff that's looking at whistleblower cases, which the new Special Counsel...she's not
all that new, but Special Counsel Learner developed this pilot project.
If you added up the numbers, and Adam you might have to help me with the math, I would
say of investigators and attorneys, it's about 40. Does that seem like...?
Adam: That sounds about right.
Shirine: Approximately 40, so it's not a lot of staff for a lot of cases.
Participant: I'd like a follo wup, please. For the 90 percent that are not referred for
a full investigation, is that because they are found to lack merit or is it because of
a lack of resources?
Shirine: It's merit based, but let me give you several caveats. First of all, a lot of
cases are filed...
With e-filing many employees file, but we don't have jurisdiction. I don't know the
numbers, but there is a number. We don't have jurisdiction over every federal agency or
every federal employee. Oftentimes contractors will file with us. So that 3000 cases is closed
on jurisdiction, again about 90 percent of those cases.
Some of the closures are based on the actual merit. Let's talk about whistleblower retaliation.
At lot of times, employees will file a complaint and no personnel action has been taken yet.
Or they engaged in the whistle blowing after the personnel action was taken. So there are
cases in which the elements are not met.
Adam Miles: I have a few other points. In this budget environment it's tough. OSC nationwide
has 110 employees. It's not just the simple service format or the Whistleblower Protection
Act that we're enforcing, but also Usara and the Hatch Act. We also have a separate disclosure
process which is just to make a proactive whistle blowing disclosure unrelated to a
personnel action.
Also, with the Whistleblower Protection Enhancement Act we think the number of referrals for investigation
will go up. At this point, it's, sort of, an unfunded mandate. What we feel like with
those 90 percent that we're closing, we're providing a service to an agency and we're
trying to do it quickly. OSC's actually completing cases, resolving cases more efficiently than
at any point in its history. It's a tough balance that we're trying to strike between
referring as many cases as we can for investigation and trying to do a quickly.
Shirine: Were there any other questions? Cynthia. [laughs]
Cynthia: A webcast viewer has a hiring related question.
Shirine: OK.
Cynthia: What if a selecting official limits the area of consideration to the point that
reasonably only the individuals in one small office could apply? Does it matter that the
selectee is not a quality candidate or has a short length of experience?
Shirine: The small office, you all know as long as there's enough of a pool of candidates
I'm not sure what small means. I've certainly seen some vacancy announcements limited to
a fairly local area, but if we're talking about the office is so small that only three
candidates would qualify that seems to me like we could start having problems with that
selection process that it might be potentially to benefit one particular person.
As far as the selectee, I might have missed the middle part of the question, the selectee
being? Cynthia, did you say minimally qualified or?
Cynthia: The individual is not a quality candidate and their length of experience is very short.
Shirine: Two things; length of experience doesn't always mean that they're not qualified
and not a quality candidate, again, we would have to look at the vacancy announcement and
determine whether they qualified or not. The manager doesn't always have to pick. What
one person might assume is the most qualified candidate as long as they meet the qualification
requirements.
Again, those are areas that we would want to look at. How limited is the selection pool?
Is it a sham? Is there really a real competition going on or is that a way to select one particular
candidate? Any other questions? OK. I'm going to turn over the presentation to Adam Miles,
who is going to tell you all about the Whistleblower Protection Enhancement Act. I think I referred
to it a couple of times; the thirteenth prohibitive personnel practice and a couple of changes
that we've seen in the law. Adam's going to into some great detail for you.
Adam: Just to reiterate, if there are any questions that come up along the way, I'm
happy to take those as they come. Shirine did a great job covering the overview of OSC
and the admitted personnel practices, up until, how they've been since 1994, the last time
there were significant amendments to the law. What I'm going to be covering is the Whistleblower
Protection Enhancement Act, which was passed in November. Most of which became effective
in December 2012, just a few months ago. It was a long process.
Whistleblower advocates and some of the organizations that focus on this area had made a push to
amend the whistleblower law starting back in, I think, 1999 was the first time a version
of the Whistleblower Protection Enhancement Act was introduced. I think I was a sophomore
in college at that point, so well before I picked up and worked on this some on the Hill
and some of those organizations were full disclaimer and also at OSC.
The Act does a number of things and it's in four areas and we'll try to get into all of
them. What it does is it expands or strengthens or clarifies, depending on your point of view,
the rights that are protected under 2302(b)(8) and that's whistle blowing. The definition
of who is a whistleblower is expanded or clarified. Two it expands the remedies. For a long time
whistleblower advocates thought that once there's a finding of retaliation that whistleblowers
should be entitled to more relief.
What the Act does is it allows for compensatory damages and I'll get into that in a little
bit more detail. It also allows for damages in the context of the investigations that
may be retaliatory. The third area is it expands jurisdiction; who's covered by the whistleblower
protections? The clearest one is for TSA screeners or Transportation Security Officers weren't
previously covered, now they are under three of the personal practices.
The fourth thing that the WPEA is, I'm going to refer to the laws, either the after the
WPEA throughout. The third thing that the Act does is it makes a number of procedural
changes. It modifies the enforcement structure in a number of areas that are going to be
relevant for your agency. We'll get to those as we move forward.
I'm going to skip ahead to the purpose. What the cornerstone of the WPEA was, especially
from the advocates' perspective and from some members of Congress, was that a series of
Federal Circuit Court decisions, it narrowed the protections, narrowed the scope of protections
that were available to workers. In a number of contexts if an employee, for example, blew
the whistle in the course of their job duties the Federal Circuit had decided that that
wasn't a protected disclosure for the purpose of the Whistleblower Protection Act.
What that meant was is that in the scenarios that we talked about, when an employee went
directly to their supervisor, which we'd hope they'd do, and blew the whistle on something
the supervisor had done or something that was going on with their workplace and thought
that there was some mismanagement or thought that there was some waste. Let's take the
example of an auditor, an auditor writes up a report, finds that there's been a waste
or misconduct in a government program, submits that report to her supervisor and it touches
a political nerve.
For whatever reason the supervisor doesn't want to hear about it and some action is taken
against that employee for just submitting that report up the chain. That report happened
to show that there was a mismanagement or a violation of law and under the way that
the Federal Circuit had interpreted the Whistleblower Protection Act, that act of submitting that
report wasn't protected.
If the same auditor with the same report, instead of submitting it to her supervisor
went to the "New York Times" with that report, she would have more protection for holding
a press conference than she would for submitting it up the chain. It didn't make a whole lot
of sense. It's not a good system. You don't get an early warning as a manger, you don't
have an opportunity to correct. One of the things that this Bill did was it said that
in this context and in others a disclosure isn't disqualified from the protections of
the Whistleblower Act if it's made in the course of job duties. That's an important
one to know.
There's lots of rhetoric throughout the Congressional Record and the Senate Reports on the Bill
explaining what the purpose of this Bill was. Any disclosure truly means "any" with no limitations.
Any disclosure of wrongdoing without the limits that the Federal Circuit had put into the
definition of whistle blowing through its decisions. You could read that in the slides.
There are a number of other loopholes that it covered.
One other thing to note is a new category, somewhat a new category of whistle blowing,
one that was, at least, highlighted in the Bill is activity related to scientific integrity
or censorship of scientific information. For agencies that deal with scientific information
Congress decided that this was one area that needed special protection or a shout out in
the Whistleblower Law. This is relevant is because the President issued a memorandum
on scientific integrity that required all agencies to issue a scientific integrity policy.
Employee who reasonably believes that there's been a violation of the scientific integrity
policy, now they can say that that is a violation of law, rule or regulation. Again, it's an
expanded or clarified definition that says ,in the area of scientific integrity, "I'm
a scientist, I believe that my work has been tampered with. I haven't been able to have
a full objective dialog about what my findings are" and that can be protected whistleblowing
under the new law.
That's the scope of protected activity. That's he cornerstone of what the Act did. It re-established
the framework, expanded the rights or clarified the rights. Maybe, I'll stop there, just because
I'm going to move on to a new section. Go ahead.
Participant: It was enacted in December and in terms of when it applies, obviously, it doesn't kick in
until December. You say on the slide that it doesn't apply to complaints in the remedy
section. Is that for the entire Act? Are you interpreting that differently for other provisions?
Host: OSC is interpreting that differently and it will be up to the MSPB, ultimately,
to decide that. There's a couple areas that I can answer clearly on. One is on that scope
of protected activity, the one that I was just talking about. Who is a whistleblower
and what's covered under the law? OSC filed an Amicus Brief in a pending case saying that
those provisions that clarify the definition of protected disclosure should apply to all
pending and future cases.
Should have some retroactive effect. I'm not going to get into all the arguments that were
in the Brief, but for that provision the MSPB specifically asks for input. Should that apply
to our pending cases and to all future cases? OSC's interpretation was yes.
The MSPB hasn't decided that yet. On the remedies we think that the law is clearer the other
way. It's new liability that catches to prior conduct and it should not have retroactive
effect. So, moving forward, and again it's an undecided issue, the MSPB is soliciting
briefs on this as well. Sorry, I was just asked to speak up, I'm a very soft speaker.
If you can't hear me, please let me know.
On the issue of compensatory damages, that's being briefed right now. OSC is unlikely to
issue a brief either way on that, but our thought is that the law is fairly clear from
Supreme Court precedent that, especially in the area of remedies and damages, that it
should only apply prospectively.
Participant: You did a nice job addressing that. Can I ask one follow-up?
Adam: Sure.
Participant: On counsel fees, how does that affect?
Host: We haven't put as much thought into that one yet. One of the things that the WPEA
did was as well. It's just in OSC cases where it's changed. OSC, as Shirine talked about,
has a unique authority to pursue disciplinary action against any employee who has committed
a prohibited personnel practice. The most common scenario under which OSC would exercise
that authority is seeking disciplinary action against a manager who is found to have retaliated
against the employee.
Under old Merit Systems Protection Board case law, the board found that if OSC doesn't win
that case, brings an action against the manager, OSC thinks he's retaliated, and the board
says no, he didn't retaliate, OSC may be on the hook under the board case law for that
manager's private attorney's fees. If he hired a lawyer and got a bill of $75,000, OSC may
be responsible for paying that $75,000 check.
The WPEA changed that and said that the agency involved, the agency of manager, is the one
that's going to be responsible for that, even if OSC is the one that chooses to bring the
action. Question on retroactivity of that provision? Maybe just give me a call and we
can talk about it more. I haven't thought about enough to...yeah, sorry.
Again, on remedies. This slide, as we talked a little about retroactivity, is talking about
compensatory damages, which is a big change. It's the first time that an employee, now,
who goes to the board, or OSC brings a case on the employee's behalf, and there's a finding
that retaliation occurred.
Previously, it was economic damages that were at stake here. The employee could get back
pay. The employee could get reinstated. The employee could get a bad performance appraisal
corrected. Now there's compensatory damages, which can include pain and suffering type
things, non-economic damages. That's going to unfold through board precedent, as well.
We don't know what the full scope of those damage awards may be. It will be significant
when there's severe retaliation. Somebody who's more of an expert in this area in our
office has been telling me that the board will probably look to EEOC case law and that
the scope of the damages awards will probably be consistent with those under Title VII.
One other piece. The next slide talks about a complicated provision in the bill that's
dealing with retaliatory investigations. One of the other remedies that an employee may
get if there's a finding of reprisal is that if they've incurred costs associated with
being investigated.
I blew the whistle. All of a sudden, I'm subjected to an OPR investigation that may be frivolous
or may be based on trumped up charges or something like that. If I had to hire an attorney to
fight off the OPR investigation, and I can show that it was unfair, that is was retaliatory,
that I was even subjected to that OPR investigation, then the board can order the remedy. The corrective
action can include my attorney's fees associated with that investigation.
Those are the two primary changes on remedies. I'll stop there quickly. [pauses] Over here
on the...
Shirine: I'm pretty sure I missed this one, [?] but four does not apply to claims except
for some hostile work environment claims? Is that where HWE...?
Adam: Yeah, that's what it means. I think the idea there...I didn't put together these
slides. Somebody else did. I'm just going with it.
The hostile work environment can be a pattern of hostile work environment. If it's continuous
and some of it was before the effective date and some after, if you can show that the hostile
work environment started but it became pervasive, that actually became a change in working conditions
sometime after, so it was actionable under the WPEA, then part of...Yeah, then that's
how. Does that make sense? OK.
Moving on to the expanded coverage. Again, this is part of an unfunded mandate on OSC.
Congress passes a new bill in November. The budget process is ongoing. We're still on
our continuing resolution from FY12, and here we've got 50,000 new TSA employees that we're
now required to cover.
Also, these new rights. These expanded definition is going to mean we're referring more cases
for investigation. This is tough. Again, we're trying to find all sorts of ways to be efficient
and to be effective in handling these cases, because we know for the agency it matters
that having clarity and finality when you want to take an action against the employee,
and they filed an OSC complaint...
We want to do a service to you as well as to the employee. We're objective here. We're
defending the merit system, not the employee, not the agency. To the extent that the employee
has told you or told their agency that they have a pending OSC complaint and they're challenging
that action, we feel like it's our responsibility to help all of you manage your workforce effectively
by getting rid of those cases quickly and efficiently.
We get that. OMB gets that. But again, we've got a whole lot of new responsibilities and
mandates under the new WPEA. One of them is TSA screener coverage. Sorry, just getting
a little griping in there in the middle of the presentation.
One of the jurisdictional changes that the bill did not make but initially contemplated
it did was covering employees in the intelligence community. Under the Title V provisions, all
of the employees in the major intelligence components: CIA, NSA, DIA, the big ones are
all excluded. If you happened to be listening and you're from an intelligence agency component,
you know that this presentation doesn't apply to you.
However, Congress deciding not to add an additional title in the act relating to intelligence
community employees, the president on his own picked up the slack, so to speak, and
put out a presidential directive that requires the intelligence community elements to set
up a whistleblower system that looks like protections that are currently available to
FBI employees.
What non-intelligence component agencies need to know about the presidential is that everyone
is required to establish a system for investigating reprisal in the form of taking an employee's
security clearance. That's something that falls outside of OSC's jurisdiction. If we
get an allegation under Supreme Court precedent that an employee blew the whistle and lost
their security clearance as a result, we don't have the authority to look at that.
One of things that the presidential directive did...President PD 19. It's a longer conversation.
I'm happy to answer questions if folks have questions about that. One of the things it
requires every agency to do, including OSC. We haven't started this yet, either. o Don't
worry, is to set up a system for investigating reprisal in the form of taking away a person's
access to classified information. It's something to note.
We only have about 10 more minutes, so I'm going to ask for another round of questions,
if there are any, and then try to keep churning through procedural changes if there aren't.
[pauses] OK, we'll hold off.
One of the structural changes that the WPEA did was that it expanded the appellate jurisdiction.
Since its creation in 1982, the Federal Circuit Court of Appeals has had exclusive jurisdiction
over MSPD cases, including Whistleblower Protection Act cases. They're from retirement to just
general service claims to whistleblower appeals.
Congress decided that the Federal Circuit wasn't doing a good enough job in interpreting
the Whistleblower Protection Act, so for the next two years, that means that an employee
or an agency will have the choice of appealing any decision that's related to a whistle blowing
claim to either the Federal Circuit or to a regional circuit court of appeals.
What that means is that a border patrol officer in San Diego who has a whistle blowing claim
will be able to appeal his case to either the Federal Circuit or to the Ninth Circuit.
That's going to be the case for federal employees around the country. The advocates, again,
were very concerned about the perceived hostility of the Federal Circuit to whistleblower issues
and believed that a split in the circuits in interpreting the WPA would be helpful.
A very important provision, I want to highlight this one. The other thing that the bill does.
It expands what a protected disclosure is for whistle blowing and also expands what
whistle blowing is.
One of the things that's always been available to employees under the Whistleblower Protection
Act. If they file a (b)(8) claim or a classic whistle blowing claim, they make protected
disclosure. They have the right after coming to OSC to seek something called an individual
right of action with the Merit Systems Protection Board. They can bring their case under an
IRA to the board under (b)(8).
Now the right to go directly to the board on the employee's own initiative has been
expanded to cover (b)(9) claims. Shirine talked about (b)(9) as a form of retaliation. That
means cooperation with an OSC investigation. It doesn't mean you initiate an OSC investigation.
You just may be a witness for an IG investigation.
The IG may call you up and say, "We need your testimony." You say OK, and then somebody
something happens to you. That's a (b)(9) claim. That's not being proactive, that's
just being a witness. That gets the enhanced procedural rights under the Whistleblower
Protection Act.
Also, the very friendly employee burdens of proof that applied previously to only the
whistleblower claims are now to this protected activity class too. All you have to show is
that your protected activity.
"I was a witness at an IG investigation, and that contributed to a personnel action that
my manager took against me." As Shirine discussed in detail, now that's the burden of proof
of (b)(8) and (b)(9).
The one that we don't get a whole lot of but that we've been talking about in the office
is refusal to obey an order that would require the employee to violate the law. Where this
may be come relevant is during furlough time. Employees can't work during their furlough
days, but that doesn't mean that the work goes away. Managers still want their employees
to be responsive. They still want them to get as much work done as they had been previously.
As far as increasing the number of (b)(9)(D) claims that may come to us during a period
of period of furlough, we may see more of those. As far as advising managers, it may
be a good idea to let them know that that may be actionable under (b)(9)(D). If you're
insisting that an employee work during his or her furlough and the employee refuses,
that's not a legitimate basis for taking action against an employee.
Shirine: If I could just jump in there. It might be a little bit more subtle than, "You
have to work during your furlough." It might be the employee. You're given a case productivity
number. You have to do 10 a week. The employee says, "Now that I'm being furloughed one day
a pay period, I may not be able to meet the 10 a week."
The supervisor says, "No, you have to meet 10 a week." It might not be that they say
directly, "Work during your furlough," but they make it impossible to complete the work
in the decreased amount of time the employee has.
Adam: We have no idea what the number of those complaints would be, but those are the types
of thing that we would expect to be coming up because of the budget situation.
I'll skip over that. I'm just going to do...We talked about disciplinary actions. I want
to make sure that I cover nondisclosure agreement provisions. This is far and away where we've
received the most questions about any provision in the WPEA. It's sort of complicated and
it's very difficult to explain, but I'll do my best to do it in English.
One of the things that the Act requires in two different section is a disclaimer. Anytime
you issue an employee a non-disclosure agreement that restricts their ability to disclose information
that they learn in the course of their employment. So, it covers non-disclosure agreements, policies
and forms.
Anytime, you issue one of those, an NDA, the WPEA requires you to put a statement on there
that notifies employees of their rights and responsibilities under the Whistleblower Law
and related topics. The disclosure is in there. I think it's on slide 16, that quotes it.
That boilerplate language has to be on any non-disclosure agreement.
The big non-disclosure agreement that's issued government wide is standard Form 312 and that
one is OD and I and that's the non-disclosure agreement that applies to classified information.
Every employee who gets a clearance has to sign SF312. That OD&I is currently in the
process of modifying SF312 to insert this non-disclosure agreement disclaimer. The rights
and responsibilities under the WPA supersede any restrictions in the agreement. Sure. Question.
Participant: How would this really come up, except for in a classified information or
a procurement integrity? In what context would an employee be required to sign a non-disclosure?
I don't know how else it would come up.
Shirine: You'd be surprised. The Department of Homeland Security has one of each of its
unclassified, for official use only type categories. So, they have sensitive....
Participant: That's like in a security clearance.
Adam: In a security setting. USDA has one for food inspections, I think the FDA has
something for confidential information that they get from drug companies, those sorts
of things.
Shirine: If I could interrupt. It even goes beyond, the provision can be a general policy.
I've seen over the years plenty of agencies that have a policy that state "employees may
not release any information that they learn during the course of their employment." We're
not talking classified information, security information. Those types of general policies,
they might even just be conveyed verbally in an email. That's' the thing to keep in
mind.
Sometimes you also see them in settlement agreements, so it can be more subtle. You're
settling a case and you say as a provision of the settlement you may not bring up, there
can be very broad waiver policies that could call into question is that a non-disclosure.
Adam: Agencies may have a general media policy, contact with the media. If it says that you
can't contact the media, unless you report it to the public affairs office, if it's whistle
blowing. That may be fine if it's not a protected disclosure. However, an employee wants to
blow the whistle on unclassified information or on restricted information and they reasonably
believe it's evidence of some form of misconduct, then what this would say is that the Whistleblower
Protection Act supersedes any restrictions that an agency would put in a media policy.
If I do want to call that "New York Times" reporter, again not encouraging it, but if
I want to. I have evidence of misconduct then the law allows me to do that and it superseded
those restrictions in the media policy. I don't know where we're at, but let me quickly
cover two things, because this is the only area in the law where agencies actually have
to do something right away.
The non-disclosure agreement language that quoted on slide 16 has to be posted on the
agency website. That does two things. What the provision does is it says that it's unlawful
to implement or enforce a non-disclosure agreement if it doesn't include this statement. That
applies retroactively to former employees. What the law says in the case of former employees
you can continue to enforce any non-disclosure agreement that didn't have this provision
if you put it up on your website. So, that's a good thing to do.
In the case of current employees who signed an agreement that didn't have this provision
in there, agencies are authorized under the law to continue to enforce it, again, if it's
up on the website and a notification is sent to all the employees. So, what OSC did, and
this is not advisory opinion OSC doesn't have the authority to issue advisory opinions,
as part of our educational authority we put together guidance as part of a memorandum
on this issue that we sent to agency general counsel.
We're getting a lot of questions on this. If you do have questions, please get in touch
with me and I'll send you that memo. I think we need to wrap it up. Thank you so much for
having us. Shirine, you want to close with anything?
Shirine: No, just we really appreciate the opportunity to reach such a broad audience.
Please don't hesitate to contact Adam or I if you have further questions.
Deborah Buford: I am Deborah Buford and I am the manager for employee accountability.
I would like to thank both of you for coming in and sharing your expertise with us this
afternoon. Truly appreciate it. We really appreciate how your presentations have provided
an outstanding explanation of how to ensure that important safeguards for the merit systems
are observed by Federal agencies.
I would also like to thank OPM's Communications and Public Liaison for their web cast of the
round table. A very special thanks to my staff, specifically Cynthia and Lashawn for their
work in coordinating this round table.
Thank you for participating today. We look forward to having you at the next Employee
and Labor Relations Round Table. As a reminder, please complete the evaluation form located
in your packet, and return it to one of the Partnership in Labor Relations staff members.
Your feedback helps us. It's very instrumental in planning future round tables.
Webcast viewers, please fax your forms to our office at 202-606-2613. If you are viewing
this with your colleagues, please gather your evaluation forms and fax them together, and
let us know that they are from a single location.
Again, thank you.
[silence]