Federal Government Contractors Set For Significant Expansion of Whistleblower Rights in NDAA 2013

Federal contractor whistleblower rights are set for a significant expansion after the Senate passed the National Defense Authorization Act of 2013 (“2013 NDAA”) on December 21, 2013, which contains important whistleblower protection provisions.  The bill has now passed both Houses of Congress and is awaiting President Obama’s signature.  Encompassing approximately 12 million employees, federal contractors are one of the largest sectors of employees in the country and amount to roughly six times the number of federal employees.  Granting meaningful protection against retaliation to such a significant number of employees should make a significant difference in preventing illegality, waste, mismanagement, abuse of authority, and dangers to public health or safety within the government. Under the 2013 NDAA, whistleblower rights and protections for federal contractors are expanded in a number of important ways.  According to the Government Accountability Project, the bill:

  • Permanently covers all employees of Defense Department contractors, subcontractors or grant recipients; and covers the same universe for all other non-intelligence community contracts or grants in a four-year pilot, pending a Government Accountability Office study and recommendations on making the rights permanent.
  • Similar to the WPEA protections for federal employees, the 2013 NDAA provisions protect contractors from disclosures of information that the employee reasonably believes are evidence of illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety.
  • Extends protections to whistleblowers harassed or fired by a contractor at the government's direction.
  • Provides whistleblowers with a three-year statute of limitations to act on their rights.
  • Allows contractor whistleblowers to file retaliation complaints with the relevant Office of Inspector General (“OIG”), which then must conduct an investigation and make recommendations to the respective agency head.
  • If the relevant agency head fails to provide requested relief within 210 days, the whistleblower may go to federal district court for de novo proceedings and have the case decided through a jury trial. The Whistleblower Protection Act legal burdens of proof will determine who wins the lawsuit or prevails in the OIG investigation. Whistleblowers who win are entitled to relief making them "whole," including compensatory damages without caps.
  • With such court cases, contractors may not receive government reimbursement of legal fees for the retaliation case, provided the whistleblower receives relief or the contractor is fined.
  • Provides "all circuits" access to appeals courts for whistleblowers to challenge adverse administrative or district court rulings.
  • Prohibits any cancellation of rights and remedies through job prerequisites or other agreements.
  • Mandates that all affected employers must provide all contractor employees with written notice of these new rights and remedies.

According to Debra S. Katz, a partner with the Washington, D.C. whistleblower and employment law firm, Katz, Marshall & Banks, “this law provides crucial legal protection to employees who are in the best position to observe and report illegalities committed by defense contractors, but who did so at their own legal peril.  While choosing to report illegalities, fraud, waste and abuse must always be approached carefully, employees can have some solace in knowing that their reports entitle them to protection against adverse employment actions and other forms of retaliation.”