Whistleblower Protections – RIGHTS OF EMPLOYEES [5 U.S.C. §2302 (b)(8)]

The Whistleblower Protection Act 5 U.S.C. §2302 (b)(8) is the most commonly known statute to define 

Federal employee whistleblowing and provide protections from adverse actions due to whistleblowing. 

This law provides in part that: 

Whistleblower definition: A protected whistleblower is an employee who discloses information which 

the employee 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 or safety.

Protection Against Retaliation

5 U.S.C. § 2302(b)(8) prohibits a federal supervisor from taking or failing to take, or threatening to take 

or fail to take, a personnel action because of a protected disclosure.

Examples of personnel action (not all inclusive):

• Appointment

• Promotion

• Detail, transfer, or reassignment

• Reinstatement

• Reemployment

• Decision concerning pay, benefits, or awards

• Any other significant change in duties, responsibilities, or working conditions

• Suspension or other disciplinary action

Legal Standards/Definitions

To receive protection under 5 U.S.C. §2302, an employee/whistleblower must show, by preponderance 

of the evidence, that:

• They made a protected disclosure; and

• The disclosure was a contributing factor in the personnel action.

If the employee/whistleblower does this, then the burden falls upon the Agency/Employer, which must

show by clear and convincing evidence that it would have taken the same action in the absence of the 

protected disclosure.
Legal Standards/Definitions (continued): 

Abuse of authority -

• “An arbitrary or capricious exercise of power by a federal official or employee that adversely 

affects the rights of any person or that results in personal gain or advantage to himself or to 

preferred other persons.”

• Harassment or intimidation of other employees;

• Assigning a grievance to a management official named as a subject in the grievance;

• Providing preferential treatment to an employee with whom the supervisor was perceived as 

having an intimate relationship.

A violation of any Law, Rule, or Regulation:

• Not something that a reasonable person would consider “arguably minor and inadvertent 

mistakes in the conscientious conduct of assigned duties.”

Gross Mismanagement or Gross Waste of funds:

• Affects Agency's ability to accomplish its mission;

• Creates a substantial risk of significant adverse impact on Department’s ability to accomplish its 

mission.

Substantial and specific danger to public health or safety:

• Hinges on likelihood of harm resulting from the danger (not whether the danger could only 

result in harm under speculative or improbable conditions).

• Key: Not just speculation that it is possible for some danger at some point in the future.

QUESTIONS? Contact AmeriCorps OGC (ogc@cns.gov)

Report waste, fraud, abuse, violations of law, substantial/specific dangers to health & safety to:

AmeriCorps OIG: Hotline 1-800-452-8210, e-mail hotline@cncsoig.gov

Office of Special Counsel (OSC): https://osc.gov/