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Proskauer Whistleblower Defense

President Obama Signs National Defense Authorization Act, Issues Signing Statement Regarding Whistleblower Provisions

Posted in Government Contractors

On January 2, 2013, President Obama signed the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which enhances whistleblower protections for employees of contractors and subcontractors vis-à-vis the Department of Defense and National Aeronautics and Space Administration (Section 827), and establishes a 4-year “pilot program” to strengthen whistleblower protections for all other federal executive agency contractors and subcontractors (Section 828).  For a detailed analysis of the pilot program, check out our recent post:  National Defense Authorization Act: Generous Whistleblower Protections for Employees of Government Contractors On The Horizon.

President Obama also issued the following signing statement expressing concern with the NDAA’s whistleblower provisions and explaining how he intends to interpret them:

Certain provisions in the Act threaten to interfere with my constitutional duty to supervise the executive branch. Specifically, sections 827 [and] 828 . . . could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials. As my Administration previously informed the Congress, I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Although the President’s statement potentially could signal a somewhat more narrow interpretation of the NDAA’s whistleblower provisions, federal executive agency contractors and subcontractors still have an acute need to step up their compliance efforts, conduct whistleblower-specific training, and modernize their whistleblower protection policies.