As of July 1, 2013, a new series of protections came into effect to protect federal contractor or subcontractor employees from being retaliated against for blowing the whistle on fraud, waste or abuse. In the past, a loophole existed in the retaliation protections such that a contractor or subcontractor employee could blow the whistle on fraud, waste or abuse and could simply be fired for their reporting without any avenues for relief. The employee was only protected if he or she actually went to a government office with a complaint, which may have meant circumventing the employee’s chain of command.
As part of the National Defense Authorization Act for Fiscal Year 2013, laws are now in place that protect federal contractor or subcontractor employees from termination or harassment after reporting fraud, waste or abuse within his or her company.
With approximately $1.9 trillion tied up in government contracts, grants and reimbursements annually, the importance of providing a safe avenue of reporting for contractor employees cannot be underestimated. The purpose behind this new protection is to encourage more of the 12 million federal contractor employees to come forward with their concerns without a fear of retribution. In 2011 Senate hearings, Maggie Garrison, Dept. of Defense’s deputy inspector general for administrative investigations, acknowledged that the number of complaints is small, but was already beginning to rise, noting “[W]e had about 16 in 2006 and by last year we had 65.” The number is expected to significantly increase with these new protections in place.
If the Office of Inspector General or an appropriate court finds that a whistleblower faced retaliation and is entitled to relief, the employee is entitled to be made whole – meaning to receive he or she could receive uncapped compensatory damages.
It is very important for potential whistleblowers to recognize that the NDAA 2013 protections are not absolutes. For examples, tf a person makes complaints are determined to be unfounded, the person may not be considered a whistleblower and therefore would not be protected from negative employment actions. This is intended to encourage individuals to come forward with actual evidence of fraud, rather than merely using this as a shield in simple employment disputes. Additionally, there are exclusions in the law for the intelligence community that may be complicated and should be discussed with legal counsel for a complete assessment.
It is also important for whistleblowers to remember that the protections are in effect for contracts or task orders that are signed after July 1, 2013 – not for whistleblowing on existing contracts after the effective date. Thus, if a contractor or subcontractor employee makes a report regarding a contract existing prior to July 1, 2013 (and that was not modified to include this new clause), the new protections will not be in effect.
If you are an employee of a federal contractor or subcontractor who has made a report of fraud, waste or abuse to your superiors, or if you are considering making such a report and would like to discuss the protections available to you, please contact the James Hoyer law firm for an evaluation of your case. Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.
Written by Jillian Estes