In an Employment Law 360 article (subscription required) today, Steve Pearlman, co-head of Proskauer’s Whistleblowing & Retaliation Group, commented on the ramifications of the passage of the National Defense Authorization Act (NDAA), which provides broad whistleblower protections to employees of federal government contractors and subcontractors.
Stressing the potentially daunting implications of this expansive new whistleblower law, Pearlman explained:
This is an exceedingly employee-friendly piece of legislation and it strongly favors whistleblowers in a couple of different respects.
For example, the scope of protected activity is unclear, particularly with respect to complaints of “gross mismanagement” and “gross waste.” What exactly constitutes “gross” management? And how is “gross” waste defined? Moreover, the statute’s preclusion of “reprisals” is unclear as well; why isn’t “adverse action” used in the statute? Such ambiguities may engender inconsistent, arbitrary and anomalous results in administrative and federal court litigation. Accordingly, Pearlman notes that, due to these ambiguities:
This legislation may very well be susceptible to constitutional challenge on vagueness grounds.
Our recent posts regarding the details of this new law and the President’s Signing Statement can be accessed here and here.