Background
Congress enacted 5 U.S.C. § 2302(c) in response to reports of limited understanding in the federal workforce concerning employees' right to be free from prohibited personnel practices (PPPs), especially retaliation for whistleblowing. Section 2302(c) requires agency heads to ensure, in consultation with the Office of Special Counsel (OSC), that employees are informed of the rights and remedies available to them under the Civil Service Reform Act (CSRA), the Whistleblower Protection Act (WPA), the Whistleblower Protection Enhancement Act (WPEA), and related laws . In 2002, OSC established the 2302(c) Certification Program to provide agencies and agency components with a process for meeting this statutory requirement.
Government Corporations are subject to 5 U.S.C. § 2302(b) in cases of alleged prohibited personnel practices described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D); thus, Government Corporations are required to complete 2302(c) Certification regarding only these applicable subsections.
In In late 2017, the President signed two pieces of legislation into law, the Dr. Chris Kirkpatrick Whistleblower Protection act of 2017 and the National Defense Authorization Act of Fiscal Year 2018 (NDAA). These statutes reemphasize the importance of the OSC’s 2302(c) Certification Program to meet the requirements of section 2302(c) and satisfy the new statutory obligations. OSC has revamped its certification program to comply with the new statutory requirements (see below).
Certification Program Overview
OSC's 2302(c) Certification Program allows federal agencies to meet the statutory obligation to inform their workforces about the rights and remedies available to them under the CSRA, the WPA, the WPEA and satisfy the new requirements of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 and the NDAA.
Most agencies should be able to complete the certification process within six months of registering with OSC and we are committed to assisting all federal agencies with meeting the requirements of 5 U.S.C. § 2302(c).
The program consists of four steps: (1) registration, (2) completion of the five requirements, (3) submission of annual certification checklist, and (4) application for certification or recertification every three years. Additional information on each step is provided below.
STEP 1: Start the certification process by submitting the registration form.
STEP 2: Complete the following five certification requirements:
Place informational posters at agency facilities (new posters)
Provide information about the applicable PPPs and whistleblower disclosures to new employees as part of the orientation process and no later than 180 days after the date the new employee begins performing service as an employee (new requirement is the 180-day timeframe; other OSC materials are currently being updated)
Provide information to current employees about the applicable PPPs and whistleblower disclosures on an annual basis
Train supervisors, in consultation with OSC, on the applicable PPPs and whistleblower disclosures every three years and annual supervisory training on "how to respond to complaints alleging a violation of whistleblower protections." (new annual requirement for supervisors on "how to respond.") [NOTE: If your agency elects to use forms or training materials outside of the materials provided by OSC, you must send the materials to OSC and receive approval prior to dissemination to ensure the materials meet the requirements of the program.]
Display a link to OSC's website on the agency's website or intranet
STEP 3: Maintain certification by completing an Annual Certification Checklist to ensure ongoing compliance
STEP 4: Request certification by submitting the compliance form and supporting documentation. If all requirements have been met, OSC will issue the agency's certification.
Certification Process
STEP 1: Registration
To begin the certification process, fill out the registration form and email the form to OSC at certification@osc.gov. The registration process allows OSC to provide additional assistance to agencies seeking certification. If you have any questions regarding the program, please email questions to the above email address or call the Certification Program helpline at (202) 804-7163. Once OSC receives the completed form, we will enroll you in the Certification Program and list your agency on OSC's website.
STEP 2: Complete the five certification requirements:
1. Place informational posters at agency facilities
Post the laws regarding the applicable Prohibited Personnel Practices (PPPs) as well as information regarding the process for making confidential disclosures to OSC. Posters containing this information should be displayed in all personnel and Equal Employment Opportunity (EEO) offices and in other prominent places throughout the agency.
The following posters are required to be posted throughout your agency and made available on your intranet in order to obtain certification, the versions below have been adapted for Government Corporations:
"Whistleblowing": Defines a "whistleblower" as someone who discloses information he or she reasonably believes evidences a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety.
"Whistleblower Retaliation": Asks, "What is whistleblower retaliation?" A federal employee authorized to take, direct others to take, recommend or approve any personnel action may not take, fail to take, or threaten to take any personnel action against an employee because of protected whistleblowing. Cites an example. Defines "protected whistleblowing."
"Prohibited Personnel Practices" (PPPs): Lists applicable prohibitions, including: whistleblower retaliation; discrimination for engaging in conduct unrelated to work performance, such as discrimination based on gender identity or sexual orientation; and hiring and promotion offenses that offend the merit system. 5 U.S.C. §§ 2302(b)(8)-(b)(9).
The following materials, though not required to obtain certification, are also highly recommended:
2. Provide information about the applicable PPPs and whistleblower disclosures to new employees as part of the orientation process
Provide, in new employee orientation packets, written materials on PPPs applicable to Government Corporations, whistleblower disclosures, and OSC's role in enforcing the laws over which it has jurisdiction. OSC has created informational materials, including an outline of PPP rights and remedies ("Your Rights as an Employee of a Government Corporation" and "Know Your Rights When Reporting Wrongs") that can either be printed or sent via e-mail.
3. Provide information to current employees about the applicable PPPs and whistleblower disclosures
Provide to all employees on an annual basis, written materials on the applicable PPPs and whistleblower disclosures. Agencies should also include this information on agency websites. As noted above, OSC has developed materials that can be e-mailed to help agencies fulfill this requirement. A sample letter/email that may be sent to agency employees is available here.
4. Train supervisors on the applicable PPPs and whistleblower disclosures
In consultation with OSC, provide training to managers and supervisors every three years to ensure their understanding of their responsibilities under the applicable PPP and whistleblower protection provisions of Title 5. If your agency elects to use forms or training materials outside of the materials provided by OSC, you must send the materials to OSC prior to dissemination to ensure the materials meet the requirements of the Certification Program. OSC strongly recommends in-person, interactive training, especially for high-level managers and supervisors. Supervisory training should be tracked to ensure that all supervisors have been trained prior to filling out the compliance form. OSC has developed several options to aid agencies in fulfilling this requirement of the program, including a newly-developed training quiz (coming soon), a PowerPoint presentation, and as noted above, OSC provides speakers for satellite and/or local training, or to address larger groups of employees.
5. Display a link to OSC's website on the agency's website or intranet
Provide a link from each agency's website or intranet site to the OSC website (https://osc.gov).
STEP 3: Maintain certification by completing an Annual Certification Checklist
Agencies will maintain certification by completing a quick and easy Annual Certification Checklist to ensure ongoing compliance.
STEP 4: Request certification by submitting the compliance form
After completing the five requirements of the program, fill out the compliance form and email the form and supporting documentation to certification@osc.gov. After OSC reviews the submission and ensures satisfaction of the five requirements, we will grant the agency a certificate of compliance indicating the agency's fulfillment of the statutory obligation under section 2302(c), as well as compliance with the second Open Government National Action Plan. Additionally, we list certified agencies on OSC's website and report federal agencies' compliance with OSC's Certification Program annually to Congress.
Recertification
Government Corporations are required to recertify every three years. After a corporation receives initial certification from OSC, the corporation may recertify by providing OSC with verification that the supervisory training was completed (must be completed every three years for all supervisors) and that the corporation continues to meet the other requirements of the program such as issuing an annual notice to all employees about their rights and remedies under the applicable PPPs and rights to file whistleblower disclosures
Register: OSC encourages recertifying agencies to register with OSC as they approach the end of their certification period. To register, complete the registration form and email the form to certification@osc.gov. If you have any questions regarding the program, please email questions to the above email address or call the Certification Program helpline at (202) 804-7163. Once OSC receives the completed form, we will enroll you in the Certification Program and list your agency on OSC's website.
Updates/ Approval of Materials: Changes to the law may have occurred since your initial certification. To avoid delays in recertification, it is strongly recommended that agencies contact OSC before completing recertification requirements in order to arrange for OSC to provide training and/or to ensure all materials (including internally created training documents) are up to date. Please note that if your agency elects to use forms or training materials outside of the materials provided by OSC, you must send the materials to OSC prior to dissemination to ensure the materials meet the requirements of the Certification Program.
Request Recertification: After completing the five requirements of the program, fill out the compliance form, then email the form and supporting documentation to certification@osc.gov. After OSC reviews the form submitted items and ensures completion of the five requirements, we will grant the agency a certificate of compliance indicating the agency's fulfillment of the statutory obligation under section 2302(c) as well as compliance with the second Open Government National Action Plan. Additionally, we list certified agencies on OSC's website and report federal agencies' compliance with OSC's Certification Program annually to Congress.