MSPB Proposes Rule to Clarify Options for Whistleblower Reprisal Appeals

The Merit Systems Protection Board (MSPB) has proposed a change that will clarify federal whistleblower appeal options.

The whistleblower appeal proposal marks the first rule and regulation reconsideration since MSPB’s start in 1979. The update will inform employees that choosing between taking their whistleblower appeal to MSPB or to the Office of Special Counsel (OSC) might make a difference in the treatment of their case.

Under the current system, an employee who wants to appeal an alleged whistleblower reprisal can choose to file their case directly with MSPB, or file alternatively with OSC. Under the latter option, the employee can later take the appeal to MSPB if OSC chooses to not take corrective action or does not inform the employee that corrective action will be taken within 120 days.

While employees under both systems need to prove they were punished for whistleblowing, the current system also requires agency officials to prove their penalties were reasonable. Under the proposal, agencies would no longer have the burden of proving reasonableness if the employee elected to go to OSC first.

“Let’s say they got in a fight, the agency has to prove that and prove the penalty they’ve selected is reasonable: They were terminated for getting into a fight,” Eisenmann said in an interview with Government Executive. “Let’s say [the employee’s] defense is, well, I got into a fight but the reason I’m getting fired is because I’m a whistleblower.”

The comment period on the proposal ends July 22.

Posted in General News

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