On Monday, the District of Columbia Council approved the Whistleblower Protection Amendment Act of 2009, which strengthens the DC Whistleblower Protection Act (DC Code § 1-615.51 et seq.) and The Employees of District Contractors and Instrumentality Whistleblower Protection Act of 1998 (DC Code § 2-223.01 et seq.). I thank my friends O. Scott Oswald and Jason Zuckerman of The Employment Law Group for their work assisting the DC Council with this Act, and for letting us all know about it. Follow the link below for their summary of the improvements.

The Whistleblower Protection Amendment Act of 2009 eliminates loopholes in the existing DC statutes and provides critical enhancements, including the following:

  • Clarifying that a whistleblower need not be an original source of a protected disclosure.  The legislative history states: “prospective whistleblowers should not have to guess about whether a supervisor already knows about misconduct in government.”
  • Eliminating the “duty speech” loophole, i.e., protected conduct includes blowing the whistle in the course of performing one’s job duties.  Protected acts under the DC WPA include “disclosure[s] made in the ordinary course of an employee’s duties.”
  • Clarifying that retaliatory investigations are a form of actionable retaliation.  The DC WPA now defines retaliation to include “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.”  An investigation includes a fitness for duty examination.
  • Extending the statute of limitations to 3 years and clarifying that § 12-309 (the pre-suit notice provision) does not apply to DC WPA claims.  Under the revised DC WPA, a “civil action shall be filed within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first.” 
  • Clarifying that a DC WPA action can be brought against a DC supervisor or official having personal involvement in the prohibited personnel action.  “Any person” who is found to have participated in prohibited retaliation may be “subject to appropriate disciplinary action including dismissal.”
  • Providing a financial incentive for whistleblowing.  In particular, a whistleblower may receive an award of up to $50,000 for providing information that enables the District to recover or prevent the loss of more than $100,000 in public funds. 
  • Increasing the civil penalty for retaliation from $1,000 to $10,000.