A short primer on the NoFEAR Act, and the Annual Report requirement

Congress passed the Notification and Federal Employee Anti-discrimination and Retaliation Act (NoFEAR Act) in 2002. This Act was intended to protect federal employees from retaliation when, while working for the American people, they ‘blew the whistle’ on safety, fraud, and other issues.  Two of the NoFEAR Act requirements (see sec. 101, items #7 and #8) were to make agencies submit annual reports to Congress, and force agencies to cover the cost of a judgment or settlement, with a payment to the Judgment Fund of the U.S. Treasury. It was believed this law would “…enable Congress to improve its oversight over compliance by agencies…” and “…improve accountability with respect to discrimination and whistleblower laws….” In theory, the Annual Reports would provide a metric which could be used by Congress and/or NGO’s to pressure performance improvements and a reduction in whistleblower retaliations.

Although NoFear Act seems simple enough, it is not working (so far) because nobody is effectively using the Annual Reports. It seems the reports are going to Congress, but our elected officials and their staff are too busy with other business. If the Annual Reports are being reviewed by GAP, POGO, and other NGO’s advocating for whistleblower protections … well, same problem; it appears nobody there is doing any analysis either (at least not yet).

Earlier this year, WhistleWatch.org initiated a series of FOIA requests, seeking NoFEAR Annual Report copies for a variety of federal agencies. Some agencies were very cooperative, some were partially cooperative, and some have just blown off the request. Here is a page with links to the 62 NoFEAR Annual Reports received so far.

aiREFORM.com was especially curious to find NoFEAR Act Annual Report data online for the FAA. Well, despite the fact that FAA has roughly 50,000 employees, they are just a component agency within the Department of Transportation (DoT). So, the FAA NoFEAR Annual Report data is ‘batched’ together with data from FHWA, FRA, and a dozen or so other transportation-related agencies. Thus, it is not possible to look at FAA-only data.

DoT/FAA Needs to Improve its NoFEAR Act Performance

A brief analysis of the entire series of DoT NoFEAR Annual Reports revealed some very disturbing trends, including:

  • The number of overall EEO cases in which whistleblower reprisal is alleged has trended upward, and has nearly doubled from 2004 to 2011.
  • The number of Federal Court Cases in which whistleblower reprisal is alleged has likewise recently surged; it averaged 7 per year from 2006-2010, but exploded to 40 cases in 2011.
  • The number of Federal Court Cases in which age discrimination is alleged has also recently surged; it averaged less than 6 per year from 2006-2010, but exploded to 35 cases in 2011.
  • One metric which may be used as an index of accountability, is to track the total number of days of suspension issued. This peaked at 234 suspension-days in 2006, then decayed downward to 85-days (in 2007), 55-days (in 2008), 14-days (in 2009), and 5-days (in 2010). The trend finally reversed in 2011, when 76-days of suspensions were issued.

In summary, complaints have increased, while suspension days have decreased. It appears that agencies are comfortable that nothing bad will happen if their lower managers choose to reprise against whistleblowers or discriminate against older employees.

It is very well known that some older employees, perhaps owing to their experience and maturity, or to a desire to find pride in the latter years of their chosen career, become increasingly inclined to speak up and blow the whistle. It is also known that a retirement-eligible employee is a good target for hostile and disparate treatment, if only because they may retire, should they endure enough retaliation hell.

All of the metrics, as reported in the DoT NoFEAR Annual Reports, indicate that FAA and other DoT agencies are pressuring older employees and whistleblowers through improper management misconduct. This problem is not abating; in fact, it is growing.

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