Congress Strengthens Whistleblower Protections for Federal Employees
Yesterday President Trump signed into law Follow the Rules Act, which prohibits an agency from taking a personnel action against an employee for refusing an order that would require the employee violate a law, rule or regulation. The Act overturns the Federal Circuit’s 2016 decision in Rainey v. Merit Sys. Prot. Bd., 2016 WL 3165617 (Fed. Cir. June 7, 2016). Rainey held that Section 2302(b)(9) protects an employee’s refusal to obey an order that would require the employee to violate a statute, but does not protect an employee’s refusal to obey an order requiring the employee to violate a rule or regulation. The whistleblower in that case was relieved of his responsibilities as a contracting officer at the State Department when he refused to obey an order to direct a contractor to rehire a terminated subcontractor, an order that he believed would violate the Federal Acquisition Regulation. The MSPB denied Dr. Rainey’s claim because the Supreme Court held in Dep’t of Homeland Sec. v. MacLean that the term law” means a statute, not a rule or regulation.
The Follow the Rules Act provides critical protection for federal employees who are placed in the difficult position of either carrying out an order that would force them to violate the law or facing disciplinary action for insubordination.