The Office of Special Counsel (OSC) is a federal agency that is responsible for investigating whistleblower complaints brought by federal employees.
TYPES OF OSC COMPLAINTS
The OSC processes both disclosures and Prohibited Personnel Practices complaints. Both of these involve whistleblowing activity, but a PPP complaint is focused on the Agency's retaliation against the employee. For example, an employee may disclose that their manager had awarded a government contract to a family member. If the manager later discovers that the employee made the disclosure and lowers their performance appraisal out of spite, then the employee could file a PPP complaint.
Under either method, the focus often shifts to whether the disclosure or initial whistleblower activity covered a protected issue. In order for an employee to be protected from retaliation, they must typically disclose something they reasonably believe violated a law, rule, or regulation.
For a PPP complaint, it is also important to show that the action taken against the employee falls within a specific list of personnel actions. General harassment cannot typically be used as the backbone of a PPP complaint unless that harassment led to a significant change in job duties, a decrease in performance evaluations, disciplinary action, or a decision affecting pay and benefits.
Oftentimes, the key to establishing whistleblower reprisal comes down to documentation. To avoid accountability for a PPP complaint, managers will often deny they even knew about the employee's previous disclosures. The Agency's argument is that the manager never knew about the disclosure, and therefore could not have retaliated.
We also see arguments that the disclosure is not protected because it covers some sort of minor issue and not a violation of law or gross mismanagement. Whether a disclosure is protected can come down to simple word choices. For example, an employee who criticizes management for "being lazy with email security" is less protected than an employee who criticizes management for "failing to encrypt sensitive information covered by the Privacy Act."
If you pursuit a PPP complaint, the Office of Special Counsel will sparingly involve themselves on the employee's behalf to seek resolution with the Agency. More often, the employee will be given what is called an Individual Right of Action (IRA), which allows the employee to advance an IRA appeal to the Merit Systems Protection Board.
Our attorneys have experiencing crafting disclosures that protect an employee if management retaliates. If you have already engaged in whistleblower activity, it is not too late to shape the narrative in a way that maximizes legal protections. It is important that you have an experienced federal employment lawyer guide you through each step of the process to help protect your interests.
Contact the attorneys at Solomon, Maharaj & Kasimati today for a free consultation!