Law360 interviewed whistleblower protection lawyer Eric Bachman for an article titled Personnel Moves May Expose Pruitt To Whistleblower Claims. The article discusses potential Whistleblower Protection Act claims stemming from EPA Administrator Scott Pruitt’s reassignment or demotion of employees who questioned Pruitt’s travel expenses and abuse of authority.
Bachman, a former Deputy Special Counsel at the Office of Special Counsel, the federal agency that protects whistleblowers, explained the burden of proof that whistleblowers must meet under the Whistleblower Protection Act:
Retaliation doesn’t have to rise to the level of firing or demotion to be problematic; more subtle actions like written reprimands and decreases in pay can qualify as retaliation, noted Eric Bachman, a principal with Zuckerman Lawand chair of the firm’s discrimination and retaliation practices.
To successfully establish a WPA claim, employees must show the U.S. Office of Special Counsel, an independent federal investigative agency, that they made a protected disclosure, that the agency took or threatened to take a personnel action against them, that the relevant officials knew about the whistleblowing activity, and that there’s a causal connection between the whistleblowing and the personnel action that was taken.
If the employee can show those things, it becomes the agency’s burden to provide “clear and convincing” evidence disproving the claim.
“That burden is significantly higher than the normal, civil ‘preponderance of evidence’ standard,” Bachman said. “So if you make that initial showing as a whistleblower, it really puts the onus on the agency to come forward with pretty convincing evidence to show it would have treated you the same even if you had never blown the whistle.”
Bachman has co-authored a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse, which is available for download by clicking here.
If you have suffered retaliation for whistleblowing, call Eric Bachman at (202) 769-1681.
