In December, Congress passed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, Public Law No. 116-92, which was signed into law by the President on December 20, 2019. Through the passage of the NDAA, Congress has again strengthened the Whistleblower Protection Act (“WPA”) and enacted a new paid parental leave benefit for most federal employees.
Whistleblower Protection Act: Protections for Employees of Federal Executive Agencies
Originally enacted in 1989, Congress amended the WPA in 2012 to strengthen workplace protections for employees of federal agencies. The WPA, as written in 2012, protects federal employees in the executive branch from retaliation for reporting illegal or improper government activities. Under the WPA, a federal government employee is protected from retaliation for reporting what he or she reasonably believes evidences:
– A violation of law, rule or regulation;
– Gross mismanagement;
– A gross waste of funds;
– An abuse of authority; or
– A substantial and specific danger to public health or safety.
NDAA FY20: Protections for Whistleblowing to Congress
Before December 20, 2019, the WPA excluded those who blew the whistle to Congress or Congressional committees. Title LVII, Section 5721 of the NDAA expands the scope of whistleblowing covered by the WPA to certain categories of whistleblowing to Congress (including any committee of Congress). The WPA now protects against retaliation for disclosures to Congress or any committee of Congress of non-classified information, even if such disclosures would be otherwise prohibited by law or by Executive Order, in the interest of national defense or the conduct of foreign affairs. It also protects disclosures of information that is classified, but that was classified by the heads of non-Intelligence Community agencies. Importantly, Section 5721 applies to disclosures made to Congress by both federal employees and applicants to federal agencies.
NDAA: Federal Employee Paid Leave Act
The NDAA for Fiscal Year 2020 also includes the long overdue Federal Employee Paid Leave Act (FEPLA). Starting in October 2020, FEPLA will guarantee up to 12 weeks of paid parental leave in connection with the birth, adoption, or foster of a new child to most federal employees.
Although the FEPLA is a historic achievement for the federal workforce, it excludes federal employees who aren’t covered by Title 5, such as TSA employees, FAA employees, judicial branch employees, and Title 38 Department of Veterans Affairs employees. Congress, however, is aware of what it describes as “technical errors” with the FEPLA as it stands. To correct these errors, Senate Minority Leader Chuck Schumer introduced the Federal Employee Parental Leave Technical Correction Act (S. 3104) in late December 2019, which would ensure that all federal employees have access to paid parental leave benefits. S. 3104 is currently awaiting consideration by the Senate Committee on Homeland Security and Governmental Affairs.