# Presentation: 026015

## PROHIBITED PERSONNEL PRACTICESWHISTLEBLOWER PROTECTION

***USERRA***

***RIGHTS AND REMEDIES***
*** ******OF FEDERAL EMPLOYEES***
***UNDER 5 U.S.C., CHAPTERS 12 & 23***

**(Name)**
**(Title)**
**(Division and/or Unit)**
**U.S. OFFICE OF SPECIAL COUNSEL**

## TOPICS5 U.S.C. CHPTRS. 12, 23, 73

- 	**U.S. OFFICE OF SPECIAL COUNSEL (OSC)**
**PROHIBITED PERSONNEL PRACTICES**
**WHISTLEBLOWER PROTECTION**

**Notes:**
NOTES: 

## AUTHORIZED TO —

INVESTIGATE PROHIBITED PERSONNEL PRACTICES AND OTHER ACTIVITIES PROHIBITED BY CIVIL SERVICE LAW, RULE, OR REGULATION

SEEK CORRECTIVE ACTION ON BEHALF OF INDIVIDUALS WHO ARE THE VICTIMS OF PROHIBITED PERSONNEL PRACTICES

SEEK DISCIPLINARY ACTION AGAINST AGENCY OFFICIALS WHO COMMIT PROHIBITED PERSONNEL PRACTICES

**INVESTIGATE **_**PROHIBITED PERSONNEL PRACTICES**_** AND OTHER ACTIVITIES PROHIBITED BY CIVIL SERVICE LAW, RULE, OR REGULATION**
_**SEEK CORRECTIVE ACTION**_** ON BEHALF OF INDIVIDUALS WHO ARE THE VICTIMS OF PROHIBITED PERSONNEL PRACTICES**
_**SEEK DISCIPLINARY ACTION**_** AGAINST AGENCY OFFICIALS WHO COMMIT PROHIBITED PERSONNEL PRACTICES**

**OFFICE OF SPECIAL COUNSEL (OSC)****5 U.S.C. §§ 1211-19; 5 C.F.R. PART 1800**

**Notes:**
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## OFFICE OF SPECIAL COUNSEL (OSC)5 U.S.C. §§ 1211-19; 5 C.F.R. PART 1800

**AUTHORIZED TO —**
**PROVIDE A SAFE CHANNEL FOR **_**WHISTLEBLOWER DISCLOSURES**_** BY FEDERAL EMPLOYEES, FORMER EMPLOYEES, AND APPLICANTS FOR EMPLOYMENT**
**ADVISE ON AND ENFORCE **_**HATCH ACT**_** PROVISIONS ON POLITICAL ACTIVITY APPLICABLE TO FEDERAL, STATE, AND LOCAL GOVERNMENT EMPLOYEES**
**OTHER AREAS ENFORCED: USERRA, ARBITRARY AND CAPRICIOUS WITHHOLDING UNDER FREEDOM OF INFORMATION ACT**

**Notes:**
NOTES:

## RESPONSIBILITIES OF AGENCY OFFICIALS5 U.S.C. § 2302(c)

_**AGENCY HEADS**_**, AND **_**OFFICIALS WITH DELEGATED PERSONNEL MANAGEMENT AUTHORITY**_**, ARE RESPONSIBLE FOR —**
**PREVENTING PROHIBITED PERSONNEL  PRACTICES**
**COMPLYING WITH AND ENFORCING  CIVIL SERVICE LAWS, RULES, AND REGULATIONS**
**ENSURING THAT EMPLOYEES ARE INFORMED OF THEIR RIGHTS AND REMEDIES (IN CONSULTATION WITH OSC)**

## KEY CONCEPTS

_***MERIT SYSTEMS PRINCIPLES***_
**	****THE FRAMEWORK AND FOUNDATION FOR MAKING ALL PERSONNEL DECISIONS IN THE CIVIL SERVICE**
_***PROHIBITED PERSONNEL PRACTICES***_
**	****ADMONITIONS AGAINST SPECIFIC PRACTICES THAT CONFLICT WITH MERIT SYSTEMS PRINCIPLES**
_***USERRA***_
**	****REEMPLOYMENT WITH BENEFITS OF ACTIVATED MILITARY RESERVISTS**

## MERIT SYSTEM PRINCIPLES5 U.S.C. § 2301(b)

**RECRUIT, SELECT, AND ADVANCE ON THE BASIS OF MERIT AFTER FAIR AND OPEN COMPETITION**
**TREAT EMPLOYEES AND APPLICANTS FAIRLY AND EQUITABLY**
**PROVIDE EQUAL PAY FOR EQUAL WORK; REWARD EXCELLENT PERFORMANCE**
**MAINTAIN HIGH STANDARDS OF INTEGRITY, CONDUCT, AND CONCERN FOR THE PUBLIC INTEREST**

## USE HUMAN RESOURCES EFFECTIVELY AND EFFICIENTLY

RETAIN OR SEPARATE EMPLOYEES ON THE BASIS OF THEIR PERFORMANCE

PROVIDE EMPLOYEES WITH EFFECTIVE TRAINING AND EDUCATION

PROTECT EMPLOYEES FROM IMPROPER POLITICAL INFLUENCE

PROTECT EMPLOYEES FROM REPRISAL FOR LAWFUL DISCLOSURES

**RETAIN OR SEPARATE EMPLOYEES ON THE BASIS OF THEIR PERFORMANCE**
**PROVIDE EMPLOYEES WITH EFFECTIVE TRAINING AND EDUCATION**
**PROTECT EMPLOYEES FROM IMPROPER POLITICAL INFLUENCE**
**PROTECT EMPLOYEES FROM REPRISAL FOR LAWFUL DISCLOSURES**

**MERIT SYSTEM PRINCIPLES****5 U.S.C. § 2301(b)**

## PROHIBITED PERSONNEL PRACTICES:OVERVIEW

**12 PROHIBITED PERSONNEL PRACTICES**** — FALL UNDER ONE OF FOUR GENERAL CATEGORIES:**
**DISCRIMINATION**
**HIRING PRACTICES THAT OFFEND MERIT SYSTEM**
**RETALIATION FOR ENGAGING IN PROTECTED ACTIVITY (INCLUDING WHISTLEBLOWING)**
**THE CATCH-ALL: VIOLATION OF LAWS, RULES OR REGULATIONS THAT IMPLEMENT MERIT SYSTEMS PRINCIPLES (INCLUDING VIOLATIONS OF CONSTITUTIONAL RIGHTS)**

## DISCRIMINATION

**PROHIBITED PERSONNEL PRACTICE TO DISCRIMINATE AGAINST AN EMPLOYEE:**
**BASED ON RACE, COLOR, NATIONALITY, RELIGION, GENDER, HANDICAPPING CONDITION, AGE, MARITAL STATUS, OR POLITICAL AFFILIATION**
**BASED ON “CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE EMPLOYEE OR APPLICANT, OR THE PERFORMANCE OF OTHERS” **
**	****	**** *****5 U.S.C. § 2302(b)(1) and (b)(10)***

## OBSTRUCTING THE RIGHT TO COMPETE, INFLUENCING WITHDRAWAL FROM COMPETITION, UNAUTHORIZED PREFERENCES, NEPOTISM, CONSIDERING IMPROPER JOB REFERENCES, VIOLATING VETERANS’ PREFERENCE

	5 U.S.C. § 2302(b)(2); (b)(4); (b)(5); (b)(6);
(b)(7); (b)(11)

**	*****5 U.S.C. § 2302(b)(2); (b)(4); (b)(5); (b)(6);***
***(b)(7); (b)(11)***

**HIRING OFFENSES**

## MOST COMMON VIOLATIONS:

DECEIVING OR WILFULLY OBSTRUCTING RIGHT TO COMPETE FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(4)

INFLUENCING WITHDRAWAL FROM COMPETITION IN ORDER TO IMPROVE OR INJURE EMPLOYMENT PROSPECTS OF ANOTHER — 5 U.S.C. § 2302(b)(5)

GIVING AN UNAUTHORIZED PREFERENCE OR ADVANTAGE TO IMPROVE OR INJURE THE  PROSPECTS OF ANY PARTICULAR PERSON FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(6)

**DECEIVING OR WILFULLY OBSTRUCTING RIGHT TO COMPETE FOR EMPLOYMENT ****— *****5 U.S.C. § 2302(b)(4)***
**INFLUENCING WITHDRAWAL FROM COMPETITION IN ORDER TO IMPROVE OR INJURE EMPLOYMENT PROSPECTS OF ANOTHER ****— *****5 U.S.C. § 2302(b)(5)***
**GIVING AN UNAUTHORIZED PREFERENCE OR ADVANTAGE TO IMPROVE OR INJURE THE  PROSPECTS OF ANY PARTICULAR PERSON FOR EMPLOYMENT ****— *****5 U.S.C. § 2302(b)(6)***

**HIRING OFFENSES**

## HIRING OFFENSES

**IT IS NOT A PROHIBITED PERSONNEL PRACTICE TO ACT UPON ONE’S EXISTING EXPECTATION THAT ONE PERSON MAY BE THE BEST SELECTEE FOR A PARTICULAR POSITION (“*****PRESELECTION*****”).**
**TO VIOLATE THE LAW THERE MUST BE —**
**THE GRANT OF SOME **_**ILLEGAL**_** ADVANTAGE**
**AN **_**INTENTIONAL AND PURPOSEFUL MANIPULATION**_** OF THE SYSTEM TO INSURE THAT ONE PERSON IS FAVORED AND ANOTHER PERSON IS DISADVANTAGED**

**HIRING OFFENSES**

**Notes:**
NOTES:

##  CAVEATS:

WHILE HIRING OFFENSES USUALLY REQUIRE INTENT TO DECEIVE OR MANIPULATE THE SYSTEM, IF A LAW, RULE, OR REGULATION IMPLEMENTING A MERIT SYSTEM PRINCIPLE IS VIOLATED IN THE PROCESS,  THAT WOULD ALSO BE A PROHIBITED PERSONNEL PRACTICE.

NEGLIGENCE OR IMPRUDENT ACTIONS CAN CREATE THE APPEARANCE OF A HIRING OFFENSE AND RESULT IN COMPLAINTS AND INVESTIGATIONS — E.G., BROADCASTING ONE’S CHOICE BEFORE COMPETITION IS HELD.

**WHILE HIRING OFFENSES USUALLY REQUIRE INTENT TO DECEIVE OR MANIPULATE THE SYSTEM, IF A LAW, RULE, OR REGULATION IMPLEMENTING A MERIT SYSTEM PRINCIPLE IS VIOLATED IN THE PROCESS,  THAT WOULD ALSO BE A PROHIBITED PERSONNEL PRACTICE.**
**NEGLIGENCE OR IMPRUDENT ACTIONS CAN CREATE THE APPEARANCE OF A HIRING OFFENSE AND RESULT IN COMPLAINTS AND INVESTIGATIONS — **_**E.G.**_**, BROADCASTING ONE’S CHOICE BEFORE COMPETITION IS HELD.**

**HIRING OFFENSES**

## EXAMPLES OF HIRING OFFENSES

**MANAGER DELIBERATELY FAILS TO HAVE VACANCY ANNOUNCEMENT POSTED, TO PREVENT A PARTICULAR CANDIDATE FROM APPLYING FOR A VACANCY**
**APPLICATION RECEIVED IS DELIBERATELY MISPLACED OR DESTROYED**
**SUPERVISOR GIVES AN EMPLOYEE A DISHONEST RECOMMENDATION OR APPRAISAL TO KEEP VALUABLE EMPLOYEE OR TO HELP ANOTHER CANDIDATE**

## SUPERVISOR ENCOURAGES A SUBORDINATE NOT TO COMPETE, OR TO WITHDRAW HIS OR HER  APPLICATION, BY MAKING PROMISES OF FUTURE BENEFITS THAT SUPERVISOR DOES NOT INTEND TO KEEP

CLOSED VACANCY ANNOUNCEMENT IS RE-OPENED TO PERMIT A FAVORED CANDIDATE TO APPLY

**CLOSED VACANCY ANNOUNCEMENT IS RE-OPENED TO PERMIT A FAVORED CANDIDATE TO APPLY**

**EXAMPLES OF HIRING OFFENSES**

## JOB QUALIFICATIONS ARE MANIPULATED TO FAVOR A PARTICULAR APPLICANT

A SUPERVISOR ADVISES A QUALIFIED EMPLOYEE NOT TO APPLY FOR A JOB IN ORDER TO IMPROVE ANOTHER EMPLOYEE’S CHANCES TO BE SELECTED

**A SUPERVISOR ADVISES A QUALIFIED EMPLOYEE NOT TO APPLY FOR A JOB IN ORDER TO IMPROVE ANOTHER EMPLOYEE’S CHANCES TO BE SELECTED**

**EXAMPLES OF HIRING OFFENSES**

## RETALIATION5 U.S.C. § 2302(b)(8); (b)(9)

**TAKING, FAILING TO TAKE, OR THREATENING TO TAKE OR FAIL TO TAKE PERSONNEL ACTION FOR **
**PROTECTED WHISTLEBLOWING**
**EXERCISE OF APPEAL, COMPLAINT, OR GRIEVANCE RIGHTS**
**TESTIMONY OR OTHER ASSISTANCE TO PERSON EXERCISING SUCH RIGHTS**
**COOPERATION WITH OR DISCLOSURES TO THE SPECIAL COUNSEL OR AN INSPECTOR GENERAL**
**REFUSAL TO OBEY AN ORDER THAT WOULD REQUIRE VIOLATION OF LAW**

**Notes:**
NOTES:

## WHISTLEBLOWER PROTECTION5 U.S.C. § 2302(b)(8)

**AN EMPLOYEE WITH PERSONNEL AUTHORITY MAY**
_***NOT***_** —**
_**TAKE, FAIL TO TAKE**_**, OR **_**THREATEN**_** TO TAKE OR FAIL TO TAKE**
**A **_**PERSONNEL ACTION**_** AGAINST AN EMPLOYEE OR APPLICANT**
**BECAUSE OF **_**ANY DISCLOSURE**_** OF INFORMATION TO ANY PERSON**
**WHICH THE EMPLOYEE OR APPLICANT **_**REASONABLY BELIEVES**_
**EVIDENCES A VIOLATION OF ANY LAW, RULE OR REGULATION; GROSS MISMANAGEMENT; A GROSS WASTE OF FUNDS; AN ABUSE OF AUTHORITY; OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH AND SAFETY**

**Notes:**
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## ELEMENTS OF PROOF: REPRISAL FOR WHISTLEBLOWING5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e)

**MUST SHOW —**
_**PROTECTED DISCLOSURE**_** OF INFORMATION UNDER ****5 U.S.C. § 2302(b)(8)**
_**PERSONNEL ACTION**_** TAKEN NOT TAKEN, OR THREATENED**
**ACTUAL OR CONSTRUCTIVE **_**KNOWLEDGE**_** OF THE PROTECTED DISCLOSURE**
**PROTECTED DISCLOSURE WAS A **_**CONTRIBUTING FACTOR**_** IN THE PERSONNEL ACTION**

**Notes:**
NOTES:

## PROTECTED WHISTLEBLOWER DISCLOSURES5 U.S.C. § 2302(b)(8)

**VIOLATION OF LAW, RULE OR REGULATION**
**SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY**
_**GROSS WASTE OF FUNDS**_
**	****MORE THAN A DEBATABLE EXPENDITURE**

**Notes:**
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## PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. § 2302(b)(8)

_**GROSS MISMANAGEMENT**_
**	****MORE THAN *****DE MINIMIS *****WRONGDOING OR NEGLIGENCE — AN ACTION THAT CREATES A RISK OF SIGNIFICANT ADVERSE IMPACT ON THE ACCOMPLISHMENT OF AN AGENCY’S MISSION**
_**ABUSE OF AUTHORITY**_
**	****AN ARBITRARY OR CAPRICIOUS EXERCISE OF POWER THAT INJURES ANOTHER, OR BENEFITS THE ABUSER OR OTHERS**

**Notes:**
NOTES:

## GENERALLY PROTECTED WHEN MADE TO ANY PERSON (EXCEPT THE WRONGDOER)

NEED NOT BE ACCURATE TO BE PROTECTED

PROTECTED IF EMPLOYEE HAS A REASONABLE BELIEF THAT IT IS TRUE — TEST IS BOTH OBJECTIVE AND SUBJECTIVE

_**NEED NOT BE ACCURATE**_** TO BE PROTECTED**
**PROTECTED IF EMPLOYEE HAS A **_**REASONABLE BELIEF**_** THAT IT IS TRUE — TEST IS BOTH OBJECTIVE AND SUBJECTIVE**

**PROTECTED WHISTLEBLOWER DISCLOSURES ****(*****cont’d)*****5 U.S.C. § 2302(b)(8)**

**Notes:**
NOTES:

## NO REQUIREMENT THAT EMPLOYEE GO THROUGH CHAIN OF COMMAND

WHISTLEBLOWER’S PERSONAL MOTIVATION DOES NOT AFFECT REASONABLENESS OF A DISCLOSURE 

EMPLOYEE OR APPLICANT IS PROTECTED IF EMPLOYER MISTAKENLY BELIEVES HE OR SHE IS A WHISTLEBLOWER

**WHISTLEBLOWER’S **_**PERSONAL MOTIVATION DOES NOT AFFECT**_** REASONABLENESS OF A DISCLOSURE **
**EMPLOYEE OR APPLICANT IS **_**PROTECTED IF EMPLOYER MISTAKENLY BELIEVES**_** HE OR SHE IS A WHISTLEBLOWER**

**PROTECTED WHISTLEBLOWER DISCLOSURES ****(*****cont’d)*****5 U.S.C. § 2302(b)(8)**

**Notes:**
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## PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. § 2302(b)(8)

**PROHIBITED BY LAW, **_***OR***_
**REQUIRED BY EXECUTIVE ORDER TO BE SECRET FOR NATIONAL SECURITY OR FOREIGN AFFAIRS REASONS**

**PROTECTED WHISTLEBLOWER DISCLOSURES ****(*****cont’d)*****5 U.S.C. § 2302(b)(8)**

**Notes:**
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## CORRECTIVE ACTION:WHISTLEBLOWER REPRISAL MATTERS5 U.S.C. §§ 1214(b)(4)(B), 1221(e)(1)

**CAN BE OBTAINED **_***IF***_** —**
**DISCLOSURE OF INFORMATION WAS A **_**CONTRIBUTING FACTOR**_** IN A PERSONNEL ACTION**
_***UNLESS***_
**AGENCY SHOWS BY **_**CLEAR AND CONVINCING EVIDENCE**_** THAT IT WOULD HAVE TAKEN THE SAME PERSONNEL ACTION IN THE ABSENCE OF THE DISCLOSURE**

**Notes:**
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## CONTRIBUTING FACTOR

**ANY FACTOR WHICH ALONE OR IN CONNECTION WITH OTHERS TENDS TO AFFECT IN ANY WAY THE OUTCOME OF THE PERSONNEL ACTION AT ISSUE**
**CAN BE ESTABLISHED BY **_**KNOWLEDGE**_** / **_**TIMING**_** ALONE**
**OFTEN ESTABLISHED BY **_**CIRCUMSTANTIAL EVIDENCE**_

**Notes:**
NOTE

## CLEAR AND CONVINCING EVIDENCE(AGENCY DEFENSE)

**AGENCY DEFENDS PERSONNEL ACTION BY SHOWING — BY *****CLEAR AND CONVINCING EVIDENCE***** — THAT IT WOULD HAVE TAKEN THE SAME ACTION WITHOUT THE DISCLOSURE.  **
**FACTORS:**
_**STRENGTH OF THE EVIDENCE**_** IN SUPPORT OF THE PERSONNEL ACTION**
**EXISTENCE AND STRENGTH OF **_**MOTIVE TO RETALIATE**_
**TREATMENT OF **_**SIMILAR  EMPLOYEES**_** WHO ARE NOT WHISTLEBLOWERS**

**Notes:**
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## OSC’S MANAGEMENT ADVICE

**BE MEASURED IN YOUR SPEECH AND ACTIONS**
**KEEP THE MERIT SYSTEMS CONCEPTS ON YOUR RADAR SCREEN**
**SEEK EXPERT ADVICE WHEN YOU ARE UNSURE**
**DEAL WITH PROBLEMS AS THEY OCCUR TO AVOID THE APPEARANCE OF BAD MOTIVE**
**BE CONSISTENT IN YOUR MANAGEMENT OF YOUR EMPLOYEES**
**DO YOUR BEST NOT TO BE SOMEONE ABOUT WHOM THE WHISTLE IS BLOWN**

## DISCIPLINARY ACTION5 U.S.C. § 1215

**PROHIBITED PERSONNEL PRACTICES**
**HATCH ACT VIOLATIONS**
**OTHER VIOLATIONS OF CIVIL SERVICE LAW, RULE, OR REGULATION**

**DISCIPLINARY ACTION****5 U.S.C. § 1215**

**Notes:**
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## DISCIPLINARY ACTION5 U.S.C. § 1215

**THE MERIT SYSTEMS PROTECTION BOARD**
**AGENCY HEADS (FOR UNIFORMED SERVICE MEMBERS AND CONTRACTORS)**
**THE PRESIDENT (FOR MOST PRESIDENTIAL APPOINTEES)**

**DISCIPLINARY ACTION****5 U.S.C. § 1215**

**Notes:**
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## DISCIPLINARY ACTION5 U.S.C. § 1215

**REMOVAL, REDUCTION IN GRADE, SUSPENSION, OR REPRIMAND**
**DEBARMENT FROM FEDERAL EMPLOYMENT (UP TO FIVE YEARS)**
**CIVIL PENALTY (UP TO $1,100)**

**DISCIPLINARY ACTION****5 U.S.C. § 1215**

**Notes:**
NOTES:

## DISCIPLINARY ACTION5 U.S.C. § 1215

**RIGHTS OF CHARGED EMPLOYEE INCLUDE —**
**OPPORTUNITY TO RESPOND**
**LEGAL OR OTHER REPRESENTATION**
**HEARING BEFORE A MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE**
**WRITTEN DECISION**

**Notes:**
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## OSC WEB SITE(HTTP://WWW.OSC.GOV)

## OSC PHONE / E-MAIL CONTACTS

_**COMPLAINTS**_**:****	****(202) 653-7188**
***	******(PROHIBITED PERSONNEL******	*****(800) 872-9855**
***	******PRACTICE, HATCH ACT,***
***	******OTHERS)***
_**DISCLOSURE HOTLINE**_**:****	****(202) 653-9125**
**	****	****(800) 572-2249**
**	****	**
_**HATCH ACT UNIT**_**:****	****(800) 85-HATCH**
**	****	****(202) 254-3650**
***	******	***_***hatchact@osc.gov***_**	****	**
_**PUBLIC INFORMATION**_** /**
_**OSC SPEAKERS /**_
_**OUTREACH**_**:**
**	**** *****CATHY DEEDS***
***	****** ******JAMES McVAY******	*****(202) 254-3600**

**Notes:**
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## OSC MAIL CONTACTS

**U.S. OFFICE OF SPECIAL COUNSEL**
**1730 M STREET, N.W. (SUITE 218)**
**WASHINGTON, DC 20036-4505**

**Notes:**
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