Government Contractors

The Supreme Court is considering whether to hear two whistleblower cases under the False Claims Act (“FCA”), both on appeal from the Fourth Circuit.  The Supreme Court has asked the U.S. Solicitor General to weigh in before the Court decides whether to hear either case.  The two cases are Kellogg Brown & Root Services Inc. et al v. U.S. ex rel Carter, case no. 12-1497, and U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America Inc. et al., case number 12-1349.

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.    

In a recent Compliance Week article (subscription required), Steve Pearlman,, co-head of Proskauer’s Whistleblowing & Retaliation Group, commented on the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which President Obama recently signed into law to enhance whistleblower protections for employees of contractors and subcontractors vis-à-vis the Department of Defense and National Aeronautics and Space Administration, and establish a 4-year “pilot program” to strengthen whistleblower protections for all other federal executive agency contractors and subcontractors.  Our posts discussing these expansive new whistleblower protections can be accessed here and here.

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:

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.

Awaiting President Obama’s signature, Sections 827 and 828 of the National Defense Authorization Act for Fiscal Year 2013 (NDAA) would enhance the whistleblower protections of contractor and subcontractor employees for the Department of Defense (DOD) and National Aeronautics and Space Administration (NASA), and establish a 4-year “pilot program” to strengthen whistleblower protections for all other federal executive agency contractors and subcontractors.  The whistleblower provisions conspicuously exempt employees in the intelligence community for apparent purposes of national security.