May 28, 2023

Volume XIII, Number 148


May 26, 2023

Subscribe to Latest Legal News and Analysis

May 25, 2023

Subscribe to Latest Legal News and Analysis

Congress Strengthens Whistleblower Protections for Employees of Government Contractors and Grantees

On December 5, 2016, Congress enacted S. 795, which permanently extends legal protections to employees of federal contractors, subcontractors, grantees, and others employed by entities that receive federal funds who report waste, fraud, or abuse involving federal funds. It would also extend these protections to personal services contractors working on both defense and civilian grant programs.

NDAA Whistleblower Protection

FraudThe National Defense Authorization Act for Fiscal Year 2013 (NDAA) established a four-year pilot program that prohibits employees of a “contractor, subcontractor, or grantee” from being retaliated against for blowing the whistle on:

  • gross mismanagement of a Federal contract or grant;

  • a gross waste of Federal funds;

  • an abuse of authority  relating to a Federal contract or grant; or

  • a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an Inspector General, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

The burden of proof and causation standard in NDAA whistleblower cases are very favorable to whistleblowers. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity. Remedies include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.

Unlike the four-year program for civilian contracts, the rights of whistleblowers working on Federal defense contracts are not time-limited.  S. 795 makes this critical whistleblower protection for employees working on civilian contracts permanent.

Purpose of NDAA Whistleblower Protection Law

The December 5, 2016 floor statements of Rep. Chaffetz and Rep. Cummings underscore how courageous whistleblowers play a critical role in combatting waste, fraud and abuse and why they must be protected against retaliation:

Mr. CHAFFETZ:  Mr. Speaker, I rise today in support of this bill, S. 795, a bill to enhance whistleblower protection for contractor and grantee employees. It is a bill with good bipartisan support in both Chambers of Congress. I really do applaud and thank, in particular, the gentleman from Maryland (Mr. CUMMINGS), the ranking member on our committee, who has helped champion this and point this out and lead our efforts in the House on this. In the House, the Committee on Oversight and Government Reform considered an identical bill, the Whistleblower Protections for Contractors Act, introduced by Ranking Member CUMMINGS and myself, and the committee reported this legislation by unanimous consent. In the Senate, it has been Senators MCCASKILL and RON JOHNSON who have worked arm in arm on this and are also very supportive of it. Today we bring up the Senate version of this bill to expedite its approval to get this bill to the President’s desk.

As you know, Mr. Speaker, whistleblowers are invaluable to the oversight work of Congress. We rely on people who are on the front lines seeing things as they truly are to provide information and blow the whistle when they see something going awry. They are one of our best sources of information about waste, fraud, and abuse within the Federal Government.

As an institution, we should try to do everything we can to encourage them to come and speak with us, and when they do, to make sure that they have the proper and adequate protections. That is exactly what this bill does, by recognizing that not all whistleblowers are Federal employees. We have robust Federal recognition and whistleblower protection for Federal employees, and we believe that contractors and others should have that as well.

It makes permanent a successful pilot program that extended whistleblower protections to civilian contractor and grantee employees. It also ensures whistleblower protections are extended to subgrantees and personal services contractors for both defense and civilian contractors. It is important because the Federal Government spends half a trillion dollars a year on grants and contracts. Think about that; half a trillion dollars is going out the door. There is always somebody doing something stupid somewhere; so to have this protection for a whistleblower as a contractor, for instance, just seems wise and prudent.

In overseeing how these funds are spent, the best source for rooting out waste is from grantees, subgrantees, contractors, and subcontractors. One loophole this bill closes is that personal services contractors were not protected in the past. These contractors can be just as valuable in identifying the waste and fraud we are committed to preventing in the first place. It only makes sense to offer those personal services contractors the same protections we give other contractors.

With this bill, we are sending a strong message to both whistleblowers and their employers. We are serious about stopping waste, fraud, and abuse, and we are serious about protecting those who bring that information forward. Every dollar of wasted funds comes from the pocket of the same hardworking men and women who elected us to Congress. It is their money. It is not our money. It is not the Federal Government’s money. It is the taxpayers’ money.

As we work to protect these taxpayer dollars, we also have a duty and responsibility to protect these whistleblowers. They are the best allies we have. S. 795 accomplishes that goal. An identical bill was passed out of our committee. I would appreciate the support of our colleagues to further this. Again, I thank Mr. CUMMINGS for his good work and passion on this. Mr. Speaker, I reserve the balance of my time.

Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in strong support of S. 795. I introduced the House companion of this legislation, the Whistleblower Protections for Contractors Act. We are taking up the Senate measure today to make sure this bill can be signed by the President before the end of this Congress.

I want to thank Senator MCCASKILL for all of her hard work and Senator JOHNSON for all that he did to make this bill come to this point.

I would also like to give special thanks to Chairman CHAFFETZ for being an original cosponsor and helping bring this bill to the floor. Our committee has always stood hand in hand with regard to protecting whistleblowers, and we have made it abundantly clear that we will do everything in our power to protect them from any type of retaliation or any type of harm.

Whistleblowers are the front line of defense against waste, fraud, and abuse. Employees who work on Federal contracts and grants see firsthand when taxpayer money is being wasted. They risk their careers to challenge abuses of power and mismanagement of government resources. They must be protected against retaliation when they blow the whistle on wrongdoing.

Just the other day, we had a witness come before our committee, and it was clear that she was very, very concerned about retaliation to the point of almost being shaken. You could actually see it. When we see these folks, we realize and we are reminded of the fact that they bring a very important resource to us as the Committee on Oversight and Government Reform, and that is they bring us information, information that allows us to be able to address problems that we wouldn’t even know about if it were not for them.

I thank Chairman CHAFFETZ and our entire committee for taking the attitude of protecting whistleblowers to the greatest extent we possibly can.

This bill would ensure that more employees are protected by giving subgrantees and personal services contractors the same whistleblower protections currently given to contractors, grant recipients, and subcontractors. This bill also would make protections for civilian contractors and grantees permanent. These are protections that contractors and grantees of the Department of Defense already enjoy.

I urge every Member of Congress to stand up for whistleblowers, to stand up for good government, and to pass this legislation. Mr. Speaker, I urge all Members to vote in favor of this very important and meaningful legislation.

© 2023 Zuckerman LawNational Law Review, Volume VI, Number 341

About this Author

Jason Zuckerman Whistleblower Attorney Washington DC

Described by the National Law Journal as a “leading whistleblower attorney,” Jason Zuckerman litigates whistleblower retaliation, whistleblower rewards, wrongful discharge, and other employment-related claims. His practice focuses on representing senior executives and senior professionals in high-stakes whistleblower retaliation cases, including SOX retaliation claims, and representing whistleblowers before the SEC,...

(202) 262-8959