Prohibited Practices
Prohibited Personnel Practices and the Whistleblower Protection Act
There are fourteen prohibited personnel practices, including reprisal for whistleblowing, which are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action" (defined in 5 U.S.C. § 2302(a)(2(A) to include appointments, promotions, reassignments, disciplinary actions, and other personnel matters) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee who has authority over personnel decisions may not:
- discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
- request or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
- coerce the political activity of any person;
- deceive or willfully obstruct anyone from competing for employment;
- influence anyone to withdraw from competition in an effort to improve or injure the employment prospects of any person;
- give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
- engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
- engage in reprisal for whistleblowing - generally, a person with personnel authority cannot take or fail to take a personnel action with respect to an employee or applicant because of a disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. The prohibition does not apply, however, if the disclosure is barred by law or is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs, except when such a disclosure is made to the Special Counsel, the Inspector General, or a comparable agency official.
- take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
- discriminate based on personal conduct which is not job-related and does not adversely affect the on-the-job performance of an employee, applicant, or others;
- take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans' preference requirement; or
- take or fail to take a personnel action, if taking or failing to take the action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.
- implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: "These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."
- access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).
The Merit System Principles are nine basic standards that govern the management of the executive branch workforce and serve as the foundation of the Federal civil service.
- Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
- All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
- Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
- All employees should maintain high standards of integrity, conduct, and concern for the public interest.
- The Federal work force should be used efficiently and effectively.
- Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
- Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
- Employees should be -
- protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and
- prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
- Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences -
- a violation of any law, rule, or regulation, or
- mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Protected whistleblowing is defined as disclosing information which the discloser reasonably believes evidences:
- a violation of law, rule, or regulation
- gross mismanagement
- gross waste of funds
- an abuse of authority
- a substantial and specific danger to public health or safety.
- Whistleblower retaliation is when a Federal employee who is authorized to take, direct others to take, recommend or approve any personnel action takes, fails to take, or threatens to take any personnel action against an employee because of protected whistleblowing.
OSC Presentation on PPPs and the WPA
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