Whistleblower protections in limbo

The Labor Department is exploring whether to impose limits on certain whistleblower protections for federal employees.

The limitations would not affect broad legislation that protects federal employees, such as the 1989 Whistleblower Protection Act and the 2001 Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act. Instead, they would prevent some environmental statutes that include broader whistleblower protections, such as the Clean Water Act, from applying to government employees.

The case of Environmental Protection Agency employee Sharyn Erickson touched off discussions of the potential limitations. A Labor Department administrative law judge in 2003 awarded Erickson $275,000 in damages for discrimination she experienced after she reported problems with toxic clean-ups.

To qualify for protection from discrimination through federal employee whistleblower legislation, employees are required to meet a number of stringent standards. They must disclose a specific violation of law, the disclosure must be above and beyond an employee's scope of duties, and retaliation has to come in the form of one of 12 specific acts, such as firing or demotion. Statute-specific whistleblower protections, such as the ones folded into the Clean Water Act, grant more expansive protections.

Federal employees who discover government wrongdoing in the course of doing their jobs would not be considered going above and beyond the scope of duties, and thus would not be covered by federal employee whistleblower legislation. They could, however, be covered under the statute-specific whistleblower protections.

For EPA specialists, for example, "everything you do is protected, outside of lunch," under the statute-specific whistleblower provisions, said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a Washington-based advocacy group. He said there are about 170,000 federal employees in environmental agencies who are covered by the extended protections.

But the Labor Department, which administers the whistleblower portions of the environmental statutes, is arguing that they do not apply to federal employees because of the notion of sovereign immunity, which protects the federal government against lawsuits.

On Aug. 17, the Administrative Review Board, an appellate body for administrative law judge decisions within the Labor Department, requested supplemental arguments from Labor officials and Erickson on "whether sovereign immunity bars any or all of Erickson's environmental whistleblower complaints against EPA." The board is considering an appeal of Erickson's $275,000 damage award.

Members of the board said they are requesting the supplemental briefs in light of their recent decision in the case Powers v. Tennessee Department of Environment and Conservation, which held that the state of Tennessee had sovereign immunity against being sued by a state employee-turned-whistleblower.

Ruch, whose group filed a brief to the review board in support of Erickson, argued that the federal government is not shielded from lawsuits in the same way states are, because "Congress has made it crystal clear that the laws it passes applies to it."

Labor Department lawyers argue that some acts with whistleblower provisions explicitly waive sovereign immunity, but the Clean Water Act and the Toxic Substances Control Act are not among them.

Once the review board makes a decision on the case, the Labor Department has to officially sanction or reject the finding. At that point, the losing side can appeal to the federal court system.