Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:
1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for disclosing to the Special Counsel, or to an Inspector General or comparable agency official (or others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs), information which the employee or applicant reasonably believes evidences a violation of any 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;
9. take, fail to take, or threaten to 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;
10. discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
11. 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; and
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. 2301.
Who Is Protected From Prohibited Personnel Practices
In general, OSC has jurisdiction over prohibited personnel practices committed against most employees or applicants for employment in Executive Branch agencies and the Government Printing Office.
In some instances, OSC jurisdiction is more limited. OSC has jurisdiction over allegations of whistleblower retaliation for employees of:
- the government corporations listed at 31 U.S.C. 9101;
- the Federal Aviation Administration;
- the Transportation Security Administration (TSA).
In addition, OSC has limited jurisdiction over allegations of nepotism at the U.S. Postal Service (USPS). Under a Memorandum of Understanding (MOU) between OSC and USPS, OSC refers alleged violations of the anti-nepotism statute (5 U.S.C. 3110) to USPS for investigation. Once USPS completes its investigation, it reports its findings and any proposed action to OSC.
As indicated above, TSA non-screener employees may file complaints alleging retaliation for protected whistleblowing under 5 U.S.C. 2302(b)(8). OSC will process these complaints under its regular procedures, including filing petitions with the Merit Systems Protection Board, if warranted.
TSA security screeners may also file complaints alleging retaliation for protected whistleblowing under 5 U.S.C. 2302(b)(8) pursuant to a Memorandum of Understanding (MOU) between OSC and TSA executed on May 28, 2002. The MOU and TSA Directive HRM Letter No. 1800-01 provide OSC with authority to investigate whistleblower retaliation complaints and recommend that TSA take corrective and/or disciplinary action when warranted. Additional information on OSC procedures for reviewing security screener whistleblower complaints under the MOU is available at http://www.osc.gov/.
Who Is Not Protected From Prohibited Personnel Practices
OSC has no jurisdiction over prohibited personnel practices committed against employees of:
- the Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies excluded by the President;
- the General Accounting Office;
- the Federal Bureau of Investigation;
- the U.S. Postal Service (except for nepotism allegations; see above); and
- the Postal Rate Commission.