Responding to 

Employees 

Who Allege 

Violations 

of Whistleblower 

Protections 

Annual Training for 

Supervisors 

U.S. Office of Special Counsel
GOALS

2

Refresh Knowledge of Whistleblower 

Retaliation 

Understand How to Respond Constructively 

When Receiving Disclosures of Wrongdoing 

and Allegations of Retaliation

Understand How to Foster an Environment 

Where Employees are Comfortable and Safe 

Reporting Concerns 
Retaliation 

Refresher

3
Alleging Retaliation 

Supervisors may not take, fail to take, or 

threaten to take or withhold a personnel 

action for: 

 Protected whistleblowing (i.e., 

disclosing wrongdoing) – statutory 

categories listed on slide 5

 Protected activity – statutory activities 

listed on slide 6 
Whistleblowing 

Categories

In general, employees must have a 

“reasonable belief” that they are disclosing 

information in one or more of the following 

categories and, unless prohibited by statute or 

classified, employees may make disclosures to 

anyone. 

Categories:

 Violation of any law, rule, or regulation  Gross mismanagement: substantial risk of 

significant impact on mission

 Gross waste of funds: more than debatable 

expenditure

 Abuse of authority  Substantial & specific danger to public 

health or safety

 Censorship related to scientific research or 

analysis (scientific integrity)

5
Protected Activity 

Includes: 

 Exercise of appeal, complaint, or 

grievance rights

 Testimony or other assistance to person 

exercising such rights

 Cooperation with or disclosures to 

Special Counsel, Inspector General, or 

component responsible for internal 

investigation or review

 Refusal to obey an order that would 

require violation of law, rule, or 

regulation
Prima Facie Case of Reprisal 

Preponderance of Evidence

The following elements must be met:

1. Reasonable belief that employee made a 

protected disclosure or employee engaged in

protected activity

2. Personnel action taken, not taken, or 

threatened

3. Actual or constructive knowledge of protected 

disclosure or activity; and 

4. Contributing factor (disclosure or activity was 

a contributing factor in the personnel action)

 Sufficient timing between the 

disclosure or activity and the personnel 

action at issue; OR

 Circumstantial evidence 
Clear and Convincing Evidence 

Agency Burden

Agency may defend personnel action 

by showing — clear and convincing evidence — that it 

would have taken the same action 

absent disclosure or protected activity. 

Factors:

 Strength of the evidence in support 

of the personnel action (Whitmore v. 

Dept. of labor, 2012)

 Existence and strength of motive to 

retaliate

 Treatment of similar employees 
What Do You Think?

9

Mallory asks for a meeting with her boss, Katrina, to discuss their organization’s 

safety regulations that often go ignored. They discuss the problem, but Mallory 

never submits a written complaint.

Is this a protected disclosure?

1. Yes.

2. No.
Answer

10

Yes. Mallory’s disclosure is protected. She is alleging a violation of agency 

regulations. There is no requirement for her to document her concern in writing. 

However, please note that a manager or supervisor is generally not required to 

determine if the employee’s disclosure of information meets the legal definition of 

a protected disclosure. 
Respond 

Constructively 

11
Engaging in Constructive Conversations: 

Steps You Can Take to Engage Effectively 

12

Change Your Emotions. We act worse when our emotions kick in. The solution is to take 

responsibility for the emotions that you bring to the conversation and avoid making assumptions about 

the employee’s intent. Creating a negative story or judging the employee can lead a manager or 

supervisor to unintentionally act in a retaliatory manner. 

Engage in Active Listening. Be receptive to the employee’s disclosure even if you do not agree. 

Utilize the active listening skills that you have honed and developed as a federal manager or 

supervisor to gather more about the employee’s concerns and demonstrate interest in what they 

are sharing with you. Thank the employee for trusting you with their concerns. 

Identify Goals. Determine the goals of the conversation. Unless required by your agency, you do not 

need to investigate the employee’s disclosures or concerns about reprisal. You also do not need to 

assess if the disclosure of information or allegations of reprisal meet the legal definitions. Focus on 

what the employee is seeking from the conversation.
Change Your Emotions

13

*As you navigate through the next few slides, think about the story you might tell yourself, how you 

would feel and potentially act.

See or Hear

Tell a Story 

Feel

Act

Credit: Patterson, Kerry, et al. Crucial Conversations. McGraw-Hill Contemporary, 2002
You See or Hear...

14

You are sitting in your office late one afternoon when an employee stops by and asks 

to have a quick chat. The employee shares that she has reason to believe that senior 

leadership (which may or may not include you) is mismanaging a high-level project.

What story might you tell yourself? 

See or Hear

Tell a Story 

Feel

Act
You Tell a Story...

15

You decide the employee is questioning senior leadership and potentially your 

effectiveness as a manager. She is upset that you were promoted over her two years 

ago.

How might you feel? 

See or Hear

Tell a Story 

Feel

Act
You Feel...

16

You feel that she is discounting all the hard work and long hours that you have put 

into managing the project. She also does not understand how you have accepted her 

work and revised it repeatedly, without complaint. 

How might you act? 

See or Hear

Tell a Story 

Feel

Act
You Act...

17

You disregard the employee’s comments and begin scrutinizing her work on the 

project.

NOTE: Not managing performance until after an employee makes a disclosure or 

engages in protected activity is a potential pitfall for managers and can result in a 

retaliation complaint. It is important to manage employees’ performance from day 

one. 

See or Hear

Tell a Story 

Feel

Act
Engage in 

Active 

Listening 

18

• Encourage employee to continue 

• Demonstrate interest in what the employee is 

saying

Neutral

• Display empathy 

• Help employee recognize and evaluate feelings

Reflective 

• Gather additional information

Clarifying 

• Bring discussion into focus

• Repeat back main points

Summarizing
Barriers to Active Listening 

19

AVOID ARGUING, BEING 

DEFENSIVE OR TRYING TO 

JUSTIFY A POSITION

AVOID ANALYZING 

EMPLOYEE OR THEIR 

MOTIVATION

AVOID MINIMIZING THE 

EMPLOYEE’S MESSAGE OR 

FEELINGS

AVOID INTERRUPTING OR

REDIRECTING THE 

CONVERSATION

BE AWARE OF NEGATIVE 

BODY LANGUAGE – RAISED 

EYEBROW, ROLLING EYES, 

TURNING AWAY FROM 

EMPLOYEE 
Identify 

Goals 

20

Assess

Inform 

Alert
21

The following points will assist managers and supervisors with 

responding to disclosures and allegations of retaliation:

Ask open ended questions to determine the employee’s intent. Are they sharing information for 

supervisory awareness, requesting an investigation, or seeking guidance on how to file a 

complaint?

Assess

Inform the employee of their right to disclose government wrongdoing or allege retaliation to 

anyone (unless barred from release by statute), including but not limited to, OSC and/or the OIG. Inform

Alert employee to agency policy on protecting confidentiality and share your obligation to alert 

the appropriate agency investigative authority if, for instance, the employee discloses a danger 

to public health or safety or any other imminent harm.

Alert
EXERCISE

22
Hannah’s Issue 

23

Hannah, a claims benefits specialist, has concerns about the lax enforcement of an agency regulation. 

Specifically, she has learned that there is an “unwritten” practice of not checking changes to monthly 

income when assessing benefits for widows and widowers. She reviewed the documentation for a few 

widow beneficiaries and believes that certain widows continued to receive SSI, despite reporting 

“new” monthly incomes that would now make them ineligible for benefits. Although Hannah’s 

supervisor has ignored her concerns, Hannah is convinced that she is right and that the problem must 

be corrected. Hannah shares her concerns with two colleagues in her department. 

Hannah’s first-line supervisor, Mark, learns about the communication. Mark believes that Hannah 

does not have enough information to make a disclosure. Shortly thereafter, Hannah learns that Mark 

has initiated an inquiry into her performance and conduct. No other action has been taken against 

Hannah. Hannah comes to you, a supervisor not in her chain of command, to discuss her concerns. 
Hannah Comes to Your Office 

24

How do you handle the conversation? What type of questions might you ask and what type of 

information might you provide? 

NOTE: You happen to know that Hannah’s supervisor, Mark, is vengeful and may harm 

Hannah’s career if she files a complaint. You also know that Mark will be careful not to take 

an official “personnel action.”

Points to think about:

a. Do you discuss Mark’s history of harming employees’ careers? 

b. Do you discourage Hannah from filing a complaint?

c. What do you say about the complaint avenues and processes? 
Foster a 

Retaliation 

Free 

Environment 

25
26

• Employees to report wrongdoing – raise 

whistleblowing during staff meetings, highlight 

disclosures that resulted in positive change. 

Supervisors set the tone!

• Please note that pursuant to the Whistleblower 

Protection Enhancement Act of 2012 (WPEA), a 

protected disclosure can be made to a wide variety 

of individuals, and not just to those who are 

“authorized” to hear the disclosure. See, e.g., 5 

U.S.C. § 2302(f).

Encourage 

• Employees that they DO NOT have to go through 

their supervisory chain to make a disclosure. 

Inform and Remind
Assure and 

Ensure 

Employees 

27

ASSURE ENSURE

Employees that the they have 

protections from retaliation for 

whistleblowing

Employees can always contact the OSC 

or OIG if they believe that they are 

experiencing retaliation or want to 

make a disclosure

Establish a Positive Culture around 

Whistleblowing:

 You can always come to me, but you 

do not have to

 Reporting violations of law and 

mismanagement makes our 

organization better

 Reporting gives us the opportunity 

to change things for the better

 Avoid statements or actions that 

could serve to chill whistleblowing

Influence the Climate with Open 

Communication:

 My direct supervisor can be reached 

at...

 Identify other offices at your agency 

that may be able to review or 

investigate disclosure

 OSC can be reached at...

 OIG can be reached at...
What Do You Think?

28

Chris works for the Procurement Office as a Contract Specialist. While working on a contract, Chris 

discovers that one of the supervisors in the procurement office, not in his chain of command, executed 

duties as a Contracting Officer without the certifications required by the Federal Acquisition Regulations. 

Chris reports this information to you, his supervisor. What is the best course of action?

A. Tell Chris that if he goes down this road it will not help his career.

B. Inform Chris that the information is not accurate and that he should be careful about spreading 

rumors.

C. Direct Chris to make a written statement and then submit the statement to the OIG.

D. Investigate his complaint.

E. Ask Chris how he wants to proceed and if you can document his concerns.
Answer 

29

E. The best course of action is to ask Chris how he wants to proceed and if you can document his 

concerns. Is he bringing the information to your attention for supervisory awareness? Does he want to 

know how and where to file a complaint? Listen to Chris, thank him for bringing his concerns to your 

attention, and alert him to his rights under the law. 

Remember: Sometimes employees just want to be heard and ensure that someone at the agency is 

listening and hearing their concerns. In the rare circumstance where you are required to elevate the 

disclosure, be transparent and tell Chris why you must report the incident.
How Can You Succeed?

30

Be knowledgeable 

about whistleblowing 

procedures and 

protections

1

Be consistent in 

managing employees

2

Be measured in speech 

and actions

3

Be mindful of how you 

engage when you have 

differing points of view, 

e.g., body language

4

Seek advice from your 

local experts when 

unsure

5