Yesterday a significant expansion of whistleblower protections for employees of federal contractors and subcontractors took effect. The National Defense Authorization Act for 2013 (“NDAA”) extended whistleblower protections to an employee of a “contractor, subcontractor, or grantee” who makes a claim of gross mismanagement, gross waste, abuse of authority, a substantial and specific danger to public health or safety, or a violation of a law, rule, or regulation related to a federal contract. These protections do not apply to a disclosure related to an “element of the intelligence community” under the National Security Act of 1984.
Unlike previous whistleblower protections, employees who make reports to a management official of the contractor, subcontractor, or grantee will now receive the statutory protection. Employees could already receive protection if they make a report to a member of Congress, an inspector general, the GAO, other government officials, or a court or grand jury.
An aggrieved employee can make a claim of reprisal to the inspector general of the executive agency involved. That inspector general must then investigate the complaint and report its findings to the head of the executive agency within 180 days. The head of the agency then has 30 days to determine whether a violation occurred and may order reinstatement and the payment of compensatory damages and attorneys’ fees. An aggrieved employee may appeal that decision to the appropriate federal court of appeals. The NDAA established these protections as a four-year pilot program.
Employees of contractors for Department of Defense and NASA contracts already had statutory whistleblower protections. The NDAA expanded those protections to subcontractors and made other additions in line with the protections in the pilot program.
These expanded whistleblower protections continue a trend of increasing the range of protected whistleblowing activity and the employees who may be considered whistleblowers. It serves as a reminder to federal contractors and subcontractors to have robust internal complaint, reporting, and investigative procedures in place. Employers should regularly notify employees of the reporting mechanisms available to them and verify that employee complaints are reviewed and investigated in a timely manner.