The President just signed into law the Whistleblower Protection Enhancement Act of 2012, formerly known as Senate bill 743.  More than a decade in the making, the law is intended to patch up whistleblower protections that over time turned out to be more holes than cover.  The highlights:

1.  broadens the categories of protected disclosures by adding “any” before the phrase “violations of the law”;

2.  broadens protected conduct by expanding references to a “disclosure” to also mention “protected activity”;

3.  identifies pursuit of a claim of whistleblower retaliation as itself being protected activity;

4.  overrides court decisions denying protection for disclosures:

a.   made to a supervisor or someone involved in the wrongdoing;

b.  revealing information previously disclosed;

c.  made out of bad motives;

d.  made orally;

e.  made while off-duty;

f.  made a long time ago; and those

g.  made in the course of usual duties (but apparently a somewhat higher burden of proof may apply);

5.  clarifies that “a communication concerning policy decisions that lawfully exercise discretionary authority” are not protected unless the employee making the communication “reasonably believes” that it evidences a protected disclosure;

6.  clarifies the law does not justify withholding information from Congress or reduce protection for disclosing to Congress;

7.  adds to the list of covered personnel actions and prohibited practices the implementation/enforcement of non-disclosure policies/forms/agreements that seek to circumvent the duties to report matters to Congress and Inspector Generals, to override classified information laws, or to weaken whistleblower protections; sets out specific disclaimer language for documents (we suggest you start adding this to your federal employee settlement agreements);

8.  allows damages to be recovered for investigations of employees that are “commenced, expanded, or extended” because of whistleblower retaliation [if the law did nothing other than add this provision it would still be a blessed, much-needed change in the status quo];

9.  expands the scope of disciplinary action that MSPB can take against a retaliating official, such as imposing a civil fine of up to $1,000;

10.  very significantly expands recoverable damages in a successful case to include “compensatory damages (including interest, reasonable expert witness fees, and costs)”–because “compensatory damages” language traditionally extends to damages for pain and humiliation, this means mental anguish damages now are available as well;

11.  for a two-year trial period, allows appeals involving only whistleblower and prohibited personnel practice claims to go from MSPB to the court of appeals that would hear the case if not for the Federal Circuit’s otherwise-exclusive jurisdiction (for example, a whistleblower working in Texas might file with the 5th Circuit, one in California with the 9th Circuit, and one in D.C. with the D.C. Court of Appeals);

12.  makes it more difficult for the OPM to intervene to overturn MSPB decisions;

13.  extends whistleblower protections to employees at TSA [an agency, in this firm’s experience, that sometimes considers itself above the law];

14.  adds protection for disclosures about censorship of research/analysis/technical information [another provision worth the price of admission]; and

15.  requires a study to be conducted of issues and ideas that (frankly) couldn’t get votes to be part of the more active sections of the bill (such as allowing whistleblower cases to be heard in federal district courts).

There’s more, but if you need more than detail than this, you probably need to read the entire bill anyway.

We’re flying the American flag with an extra measure of pride in our country today.  Don’t get us started on how many of history’s major disasters could have been avoided if whistleblowers had been headed…