Attachment 11 Whistleblower Information- Employee Rights.pdf

WHISTLE BLOWE

I FO MATIO

for EMPLOYEES OF DOJ CONTRACTORS SUBCONTRACTORS, GRANTEES.c. 9R SUBGRANTEES

OR PERSONAL SERVICES CONTKACTORS

Federal law prot ~t5 federal mpl(fy'e i agaln5t rnprlial tor whiitl blowing, In addition, und r Title 41, Unit d States Cod , s ction 4712, it ls ill gal for n employe of F d ml contractor, ~ubcontractor, grant £:, or ubgrante or p~rilJnal ervices ctmtracwr to b~ dl~charg d, d mottu;t or oth~rwls dl~criminated again~t for making a protected whistleblow~r disdosurn, Also, under Prniidential Policy Dirnctlve (PPD·1 ~nan action affecting acceis to da~ilfied information cannot b~ taken in rnprl~al f ~r protect d whlitl blowing

The Department of Justice Office of the Inspector General (DOJ OIG) has Jurisdu:tion to investigate allegations of reprisal for whistleblowing by employ s of DOJ contractors, subcontractors, grantees, or subgrantees or p rsonal services contractors, Information on how to report suspected reprisal to th OIG is available at: https:/ /olg.Justlce.gov/hotllne/, WHAT IS A WHISTLEBLOWER

A whlstleblow r ls an employee of a Federal contractor, iubcontractor, gr.ante , or subgrant e or personal services contra~tor who dl5do~es information that the individual rea~onably believ Ii evidence of:

• Gro~~ mismanagement of a Federal contract or grant

• A gros~ wast of F d r I funds;

• An abus of authority relating to a F deral contract or grant,

• A substantial and specific danger to public health or safety; or

• A violation of law, rul , or regulation related to a F deral contract (including th competition for or negotiation of a contract) or grant

TO WHOM MUST THE DISCLOSU E BE MADE TO BE PROTECTED?

" A Member of Congress, or a repres ntative of a committe of Congress;

" TheOIG;

" The Government Accountability Office (GAO);

" A Federal employee responsible for contract or grant oversight or management at the relevant agency;

" An authorized official of the DOJ or other law enforcement agency;

" A court or grand jury; or " A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct, Disclosures involving classified information should be mad in accordanc with otherwise applicable laws, and individuals should consult with the OIG to ensure that such disclosures to lt are mad ppropriately, WHAT CAN I DO IF I BELIEVE RETALIATION HAS OCCURED?

Employees of contractors, subcontractors, grantees, or subgrantees or per onal ervices contractors may file a complaint under Section 4712 with the OIG, which will inve~tigate the matter unless the OIG determines that the complaint is frivolous, fails to allege a violation of the prohibition again t whistleblower reprisal, or has been addressed in anoth r proceeding, Upon completion of Its Investigation, the OIG wm submit a report of its findings to the person, the contractor or grantee concerned, and the head of the agency.

If you are an employee of DOJ, or of a DOJ contractor, subcontractor, grant e, or subgrantee or personal services contractor, and you suspect that a personnel action or an action af-t cting ace ss to classified information has been taken againit you in reprisal for making a disclosure of wrongdoing, you may r port it to th OIG, Nothing in a non~disdo~ur agrnement §hould be lnterprnted ai limiting your ability to provide information to the OIG, For further Information about whi~tleblower right~ ind prnt~ction~, pl~a~ fe the Wh1~tleblQW~r Prnt~ctlon page Qn the OIG'~ w~b~it at https://otg,Justice.gov /hotHne/whistleblower,protecdon.htm

Not : The OIG doe~ not have uthority to lnv~~tig;,jt~ EEO compf;,jint~, F©r ~uch matt~rn, plft.t~~ mt r to the DOJ fqual tmployment Opportunity Office, web~lt~ https://Justlce.gov/Jmd/eeos, If you wi~h to make a whlitl~blower di~do~urn or rnport rnpriial for doing so out~id~ DOJ, you may contact th~ U,S, Office of Special Coun5el, w bsite: http1://01c.gov, HOWCA l·REPORTWRO GOOI GTODOJOIG?

ff you know about waste, fraud, abuse, misconduct, or whistleblower reprisal relating to a Department of Justice (OOJ) employee, program, contract, or grant you may" port it to the OIG through the following:

Website: https://oig,Justice,gov /hotline Hotline: (800) 8696 4499

Fax: (202) 616·9881

Malling Address:

u,s, Department of Justice Office of the Inspector General Inspections Division 1425 New York Avenue, N,W, Suite 7100 Washington, D,C, 20530·2001

KNOW YOUR IGHT WHEN REPORTING WRONG

Whistle blower disclosures can save lives as well as billions of taxpayer dollars. They play a critical role in keeping our government honest, efficient and accountable. Recognizing that whistle blowers root out waste, fraud and abuse, and protect public health and safety, federal laws strongly encourage employees to disclose wrongdoing. Federal laws also protect federal employees from retaliation.

The U.S. Office of Special Counsel (OSC) plays an important role in helping whistleblowers. OSC is an independent agency that protects federal employees from prohibited personnel practices (PPPs) , including whistleblower retaliation and unlawful hiring practices, such as nepotism. OSC also provides an independent, secure channel for disclosing and resolving wrongdoing in federal agencies. This guide provides a summary of whistleblower protections and avenues available to employees to disclose wrongdoing. For more information, please visit OSC's website at www,o ~go,x.

Disclosures of Wrongdoing

Where can I report wrongdoing?

Current and former federal employees and applicants (henceforth "federal employees") can report on any of the following types of wrongdoing:

• a violation of any law, rule, or regulation,

• gross mismanagement,

• a gross waste of funds ,

· an abuse of authority,

• a substantial and specific danger to public health or safety, or

• censorship related to scientific research if censorship meets one of the above-listed categories.

Federal employees have many options on where to disclose wrongdoing, including but not limited to, making disclosures to supervisors or someone higher up in management; the agency's Inspector General (IG); OSC; or, Congress. For whistleblower disclosures involving classified national security information or other information protected from public release by law (e.g. patient privacy information), whistleblowers must u se confidential channels such as an IG, OSC, or Congress in order to be protected from adverse personnel actions related to their disclosures.

Can probationary employees file disclosures or PPP complaints with OSC?

Yes. Probationary employees have the same right to file disclosures or PPP complaints with OSC as do most current federal employees, former federal employees, or applicants for federal employment. Note - except for appeals alleging retaliation for whistleblowing or engaging in protected activity, probationary employees generally do not have the right to appeal personnel actions to the Merit Systems Protection Board (MSPB) .

Can I keep my identity confidential?

Yes. Most Inspectors G~neral have hotlines that allow employees to make confidential disclosures.

Inspectors General are prohibited from disclosing an employee's identity unless the IG determines that disclosure is unavoidable or is compelled by a court order. If you file a disclosure with OSC, your identity will not be shared outside of OSC without your consent. However, OSC may disclose your identity only if OSC determines that it is necessary because of an imminent danger to public health or safety or an imminent violation of any criminal law.

What will OSC do once I make a disclosure?

When a federal employee discloses wrongdoing to OSC, OSC evaluates the information and interviews the federal employee. OSC determines whether it is substantially likely that the employee's allegation - or any portion of it - can be proven and whether it discloses a violation of a law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. If it meets that standard, OSC will require the agency to investigate and submit a report of the agency's findings to OSC. The whistleblower then has an opportunity to comment on the agency report. Those comments, together with any comments or recommendations by the Special Counsel, are sent with the agency report to the President and congressional oversight committees. The agency report is usually made available to the public.

Prohibited Personnel Practices

Are whistleblowers protected from retaliation?

Yes. The Civil Service Reform Act and whistleblower protection laws prohibits retaliation.

Retaliation for whistleblowing is one of fourteen ~ - Protection from whistleblower retaliation means it is unlawful for agencies to take, threaten to take, or fail to take a personnel action because the employee disclosed one or more of the six categories of government wrongdoing (listed on page 1). Personnel actions can include actions such as poor performance reviews, demotions, suspensions, or terminations. As noted above, probationary employees have the right to file PPP complaints with OSC.

However, disclosures of information specifically prohibited by law or required by Executive Order to be kept secret are protected only when made to an OIG, OSC, or certain individuals within Congress. Additionally, federal law establishes that a federal employee has the right to communicate with and provide information to Congress.

OSC also has jurisdiction to protect federal employees at most agencies from retaliation for filing an appeal, complaint, or grievance; helping someone else file or testifying on their behalf;

cooperating with or disclosing information to the Special Counsel, an Inspector General, or a component responsible for internal investigations/reviews; or, refusing to obey an order that violates a law, rule or regulation.

What can you do if you believe retaliation occurred?

If you believe that an agency has retaliated against you because of your whistleblowing or because you engaged in protected activity such as disclosing information to an Inspector General, you can:

file a complaint with OSC, which may seek corrective or disciplinary action when warranted;

file a union grievance; or if you have been subject to a significant personnel action, you can file an appeal with the MSPB (www,m~p.h,g..,m,-) and assert retaliation (or any other PPP) as a defense.

Note that a federal employee may choose only one of these three options when appealing a significant personnel action.

What relief is available to an employee who has suffered retaliation?

Many forms of relief are available. They include job restoration, reversal of suspensions and other adverse actions, back pay, reasonable and foreseeable consequential damages, such as medical costs, attorney fees, and compensatory damages. In addition, damages may be awarded for attorney fees and expenses incurred due to retaliation.

Can OSC delay a personnel action while the matter is investigated?

Yes. An individual may ask OSC to delay, or "stay," an adverse personnel action pending an investigation. OSC will consider requesting a delay of a personnel action if OSC has reasonable grounds to believe that a prohibited personnel action was taken and, absent a stay, the employee will be subjected to immediate and substantial harm, such as removal, suspension for more than 14 days, or geographic reassignment.

How can OSC remedy a prohibited personnel practice?

Federal employees may report suspected PPPs to OSC. Their complaint will be investigated. If there is sufficient evidence to prove a violation, OSC can seek corrective action, disciplinary action, or both. Alternatively, parties in selected cases may agree to mediate their dispute in order to reach a mutually agreeable resolution of the complaint. OSC may attempt to resolve a case with an agency at any stage. If an agency refuses to provide corrective action, then OSC can take the case to the MSPB. The MSPB can order the agency to take corrective action. Such litigation begins with the filing of a petition by OSC that alleges there are reasonable grounds to believe a PPP occurred, is occurring, or is imminent.

Can a manager be held accountable for retaliating against a federal employee?

Yes. OSC may seek disciplinary action against any employee who commits a PPP. If an agency fails to take disciplinary action, then OSC can bring a disciplinary action case to the MSPB against the employee who committed the PPP. If the MSPB finds that an individual has committed a PPP, it can order disciplinary action, including removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or a fine of up to $1 ,000. Additionally, new statutory provisions impose a mandatory proposed penalty for supervisors that commit violations of 5 U.S.C. § 2302(b)(8), (b)(9), or (b)(14).

Can appeals of PPP complaints be filed with the MSPB?

Retaliation Claims - Individual Right of Action (IRA) Appeals

Under some circumstances, employees may file appeals of PPP complaints with the MSPB.

Employees may file what is called an IRA appeal with the MSPB for any personnel action taken, not taken, or threatened because of retaliation for whistle blowing or for engaging in protected activity, such as filing an Office of Inspector General complaint. More information on the right to file an IRA may be found at 5 U,S,CJ_1221(at However, before filing an IRA appeal with the MSPB, employees must file a retaliation PPP complaint with OSC, requesting an investigation.

Can other. types of appeals involving PPPs be filed with the MSPB?

Appeals of Significant Adverse Actions - Affirmative Defense

Yes. Employees may raise one or more of the 14 PPPs as a defense to a significant adverse action with the MSPB. However, the employee must elect whether to file a PPP complaint with OSC, file an appeal of the significant adverse action with the MSPB, or file a grievance with the union. The list of significant adverse actions may be found at 5 C,F,L& 12(ll,_q_. If the employee elects to raise a PPP as a defense to ·a significant adverse action with the MSPB, such an appeal is called an "affirmative defense" to the agency's personnel action and the MSPB will determine if the action that was taken was based on any of the 14 PPPs described in section 2302(b) of Title 5 of the U.S.

Code.

For more information on MSPB appeal rights, go to www.mspb,llfl,v.

For more information on PPPs, including retaliation, go to WWW,<l c,"®Jpm,, To learn more about filing a whistleblower disclosure with OSC, go to W'W..,W:,Q C,(&'.mddi 'Clo e.

To file a PPP complaint or whistleblower disclosure with OSC, go to www,o~,g_mrle.flle.

U.S. Office of Special Counsel 1730 M Street , N.W. , Suite 218 I Washington, D.C. 20036

Phone: (202) 804-7000 I Toll Free: 1-800-872-9855 'ITY: 1-800-877-8339 I Email : ifll~_§lMtQX.

WWW o.c.a,or, Rev. 03/19

YOUR RIGHTS AS A FEDERAL EMPLOYEE

ENFORCEDBV

THE U .. S .. OFFICE OF SPECIAL COUNSEL

' ·r he I; S ( >ffir. c nf Special ( oun-.cl (OS( ) "'an mdcpcndcnt agency that invcst,g;itcc., I and pru--.ccutc-. allcgat,on-. uf proh1h1tcd pcr-.onncl pr,1ct1cc-. I

WHAT IS A PROHIBITED PERSONNEL PRACTICE <PPP}?

Under 5 US.C. §§ 2302(b){ l )-(b)(14) a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:

• Discriminate (including discrimination based on marital status and political affiliation).

EXAMPLE: Supervisor Joe refuses to promote Employee Jane because Jane is a registered Republican; or his refusal is because she is a single mother. (OSC will generally defer Title VII discrimination aJlegations to the EEO process, rather than duplicating already existing procedures.)

• Solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics. EXAMPLE:

Selecting Official Joe hires Applicant Jack based on Senator Smith 's recommendation that Jack be hired because Jack is a constituent; or fai ls to hire Applicant Jane-because of Congressman Smith's recommendation based on the Congressman's friendship with Jane's parents.

• Coerce the political activity of any person, or take action against any employee as reprisal for refusing to engage in political activity.

EXAMPLE: Supervisor Jane takes away significant job duties of Employee Jack because Jack will not make a contribution to Jane 's favorite candidate . .

• Deceive or willfully obstruct any person from competing for employment. EXAMPLE:

Supervisor Joe, located in Headquarters, orders that no vacancy announcements be posted in the field office where Employee Jack works because he does not want Jack to get a new job; or fa lsely states that there will be extensive travel in the position when he f...71ows that there is no travel.

• Engage in nepotism. EXAMPLE: Second level Supervisor Jane asks First-level Supervisor Joe to hire her son; or to promote her daughter.

• Take a personnel action against an employee because of whistleblowing. EXAMPLE:

Supervisor Joe directs the geographic reassignment of Employee Jack because Jack reported safety violations to the agency's Inspector General; or because employee Jill reported a gross waste of funds to the Office of Internal Affairs.

• Take a personnel action against any employee because of the exercise of an appeal, complaint, or grievance right. EXAMPLE: Supervisor Jane places Employee Jack on an undesirable detail because Employee Jack filed an administrative grievance about his performance rating

• Discriminate against an employee on the basis of conduct, which does not adversely affect the performance of the employee, including discrimination based on sexual orientation.

EXAMPLE: Jack's employment is terminated because he attended a "Gay Pride" march; or he attended a "Pro-Life" event; or he attended an animal rights rally; or he attended a gun-owners' rights meeting

• Take or fail to take a personnel action, if such action would violate a veterans' preference requirement. Example: Supervisor Jane hired Employee Jack, without considering Veteran Jennifer, who was included on the list of eligible employees. (OSC 's jurisdiction is for disciplinary actions only; the Dept. of Labor has jurisdiction to investigate for corrective actions.).

• Influence any person to withdraw from competition for a position to improve or injure the employment prospects of any other person.

EXAMPLE: Supervisor Jane, in an effort to hire Employee Joe, tells Employee Jack that he should not apply for a position because he is not qualified and will never be selected. Employee Jack is qualified.

• Give an unauthorized preference to a person to improve or injure the employment prospects of any particular employee or applicant.

EXAMPLE: Supervisor Jane specifies that Spanish-sp eaking skills are necessary f or a vacant position, f or the purpose of selecting Employee Jack, who speaks fluent Spanish. The position, however, does not require Spanish-speaking skills.

• Take a personnel_ action against an employee which violates a law, rule, or regulation which implements a merit systems principle. EXAMPLE: Supervisor Joe terminates the probationary appointment of Employee Jack because of Jack 's letter to the editor criticizing affirmative action - a valid e.xercise of First amendment rights, a law implementing a merit system principle.

• Implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights. EXA MPLE: A manager requires all employees in his program to sign a non-disclosure agreement that prohibits the employees.from discussing the program in any way and.fails to notify employees a/ protected channels for making disclosures.

• Access the medical record of an employee or applicant, as part of, or in furtherance of any of the above-listed prohibitions. EXAMPLE:

An employee expresses interest in an open position to the hiring official, who wants to hire another applicant. Th e hiring official accesses the employee's medical record and attempts to influence the employee to withdraw from competition by telling her that the stress of the new position will worsen a condition found in her medical record.

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Current and former federal employees, including probationary employees, and applicants for federal employment can file a written complaint with the U.S. Office of Special Counsel. Complaint forms are available on the Web at Wtttt'.,O,C,gm;:. Employees do not need attorneys to file a complaint. OSC is an independent and prose.cutorial agency. It will investigate allegations of prohibited personnel practices and seek the appropriate corrective and/or disciplinary action.

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RECEIVING CONFIDENTIAL DISCLOSURES <5 u,s,c, § 1213}:

Current and former federal employees and applicants can confidentially report information evidencing a violation of any law, ~ le, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. OSC has the authority to require the head of the agency concerned to investigate the matter ifOSC determines that a disclosure has been made.

ENFORCING THE HATCH ACT <5 u,s,c, §§ 7321-26}:

OSC is authorized to issue advisory opinions that respond to federal employee questions about whether or not they may engage in specific political activities under the Act. OSC also prosecutes violations of the Hatch Act before the Merit Systems Protection Board. These violations include: using official authority to interfere with an election result; soliciting, accepting or receiving political contributions; soliciting or discouraging political activity of persons before the employing agency; and running for public office in a partisan political election.

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• Information on fi ling a complaint or making a disclosure: 202-804-7000, 800-872-9855 , or igfg@OSS,®L

• Updated and detai led information on OSC and its procedures: tt:,nt·&H,g.m;,

• Information about training and certification: 202-804-7163 or gg@Mf:km@gu:,g;gy.

Rev. 03/19