5 U.S.C. § 2302: Prohibited personnel practices

For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b). an appointment; a promotion; an action under chapter 75 of this title or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under chapter 43 of this title or under title 38; a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; a decision to order psychiatric testing or examination; the implementation or enforcement of any nondisclosure policy, form, or agreement; and any other significant change in duties, responsibilities, or working conditions; excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration; a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D); the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or the Government Accountability Office; and any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 ); on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a); on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d) ); on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ); or on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation; an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or an evaluation of the character, loyalty, or suitability of such individual; coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; deceive or willfully obstruct any person with respect to such person’s right to compete for employment; influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment; grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment; appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title ) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title ) or over which such employee exercises jurisdiction or control as such an official; any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, any violation (other than a violation of this section) of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or not classified; or has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 )); and does not reveal intelligence sources and methods. 1 1 So in original. The period probably should be a semicolon. with regard to remedying a violation of paragraph (8); or other than with regard to remedying a violation of paragraph (8); testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or refusing to obey an order that would require the individual to violate a law, rule, or regulation; discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement; take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title ; 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 or the Office of Special Counsel 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.”; or prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any 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 any other whistleblower protection; or 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). appointed to a position as an employee on or after the date of enactment of this subsection; and who has not previously served as an employee; and the term “whistleblower protections” means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b). preventing prohibited personnel practices; complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and information with respect to whistleblower protections available to new employees during a probationary period; the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and the Special Counsel; the Inspector General of an agency; Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or another employee of the agency who is designated to receive such a disclosure. The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed. The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists. Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2). section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 ), prohibiting discrimination on the basis of race, color, religion, sex, or national origin; sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a), prohibiting discrimination on the basis of age; under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d) ), prohibiting discrimination on the basis of sex; section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ), prohibiting discrimination on the basis of handicapping condition; or the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation. Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701. Sections 943(c)(2) and 1784(c) of title 10. Section 1308(b) of the Alaska National Interest Lands Conservation Act. Section 301(c) of the Foreign Service Act of 1980. Sections 106(f), 2 7281(e), and 7802(5) 2 See References in Text note below. 2 of title 38. Section 1005(a) of title 39 . Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection. Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs. Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action). the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii); the disclosure revealed information that had been previously disclosed; of the employee’s or applicant’s motive for making the disclosure; the disclosure was not made in writing; the disclosure was made while the employee was off duty; the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or of the amount of time which has passed since the occurrence of the events described in the disclosure. If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee. it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection [set out as a note above].” the term ‘agency’ has the meaning given under section 2302(a)(2)(C) of title 5 , United States Code; the term ‘applicant’ means an applicant for a covered position; the term ‘censorship related to research, analysis, or technical information’ means any effort to distort, misrepresent, or suppress research, analysis, or technical information; the term ‘covered position’ has the meaning given under section 2302(a)(2)(B) of title 5 , United States Code; the term ‘employee’ means an employee in a covered position in an agency; and the term ‘disclosure’ has the meaning given under section 2302(a)(2)(D) of title 5 , United States Code. any violation of law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and any violation of law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods. A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code. Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.” Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall 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.’. Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions. Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement. it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2). Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.”