By Jason Zuckerman | Last updated: August 22nd, 2017

Whistleblower Protections for Employees of Government Contractors and Grantees

The qui tam provisions of the False Claims Act have enabled the federal government to recover more than $30 billion based on disclosures by courageous whistleblowers working for government contractors or grantees. Both the False Claims Act and Sections 827 and 828 of the 2013 Defense Authorization Act (NDAA) contain strong whistleblower protection provisions for employees of government contractors and grantees, and protect a broad range of whistleblower disclosures concerning fraud on the government.

The whistleblower lawyers at Zuckerman Law have substantial experience representing whistleblowers at government contractors and grantees in whistleblower retaliation claims. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

See our Practical Law Practice Note: “Whistleblower Protections Under the National Defense Authorization Act.”

False Claims Act Whistleblower Protection for Government Contractor Employees

The anti-retaliation provision of the False Claims Act protects steps taken in furtherance of a potential or actual qui tam action and efforts to stop 1 or more violations of the FCA. Protected conduct includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices.

Prevailing in a False Claims Act retaliation claim requires a showing that:

the employee engaged in protected activity;
the employer had knowledge that the employee was engaged in protected activity;
the employer took an action that had a negative effect on the terms, conditions, or privileges of employment, such as termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the False Claims Act; and
the employer retaliated against the employee because of this conduct.

Remedies for Government Contractor Employees in False Claims Act Retaliation Claims

A prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes:

reinstatement or front pay,
double back pay (double lost wages and benefits);
interest on the lost wage;
special damages, which includes damages for emotional distress and other non-economic harm resulting from the retaliation; and
attorney’s fees and costs.

Filing a False Claims Act Whistleblower Retaliation Claim

The statute of limitations for a False Claims Act whistleblower retaliation claim is three years from the date on which the retaliation occurred. An FCA retaliation claim can be brought directly in federal court; there is no requirement to first file with an administrate agency. If a whistleblower is also filing a qui tam claim, an FCA retaliation claim can be filed under seal.

NDAA Government Contractor Whistleblower Retaliation Law

Sections 827 and 828 of the NDAA provide robust whistleblower protection to employees of most government contractors and grantees.

NDAA Protected Whistleblowing

The scope of protected whistleblowing under the NDAA whistleblower protection provision is far broader than the scope of protected conduct under the False Claims Act. Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:

gross mismanagement of a Federal contract or grant;
a gross waste of Federal funds;
an abuse of authority relating to a Federal contract or grant; or
a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

A covered person or body includes a “management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.” 41 U.S.C. § 4712(a)(2)(G).

Gross mismanagement is “a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.” Kavanagh v. M.S.P.B., 176 F. App’x 133, 135 (Fed. Cir. 2006) (quoting White v. Dep’t of Air Force, 63 M.S.P.R. 90, 95 (1994))

“An abuse of authority requires an `arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.'” Elkassir v. Gen. Servs. Admin., 257 F. App’x 326, 329 (Fed. Cir. 2007)

Proving NDAA Whistleblower Retaliation

The burden of proof and causation standard in NDAA whistleblower cases are very favorable to whistleblowers. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.

Remedies for Prevailing NDAA Whistleblowers

Remedies for prevailing whistleblowers in NDAA whistleblower retaliation claims include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.

If an NDAA case is being litigated federal court, the plaintiff can add a False Claims Act retaliation claim and potentially recover double back pay.

Filing a NDAA Whistleblower Retaliation Claim

An NDAA reprisal claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statue of limitations is three years after the date of the reprisal. The OIG will investigate the complaint and make recommendations to the agency head. If the agency head fails to provide requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.

The requirement to exhaust administrative remedies in an NDAA retaliation lawsuit (filing the complaint with an OIG prior to filing the complaint in federal court) is jurisdictional. Therefore, an NDAA complaint filed initially in federal court will likely be dismissed.

The rights and remedies provided in Sections 827 and 828 may not be waived by an agreement, policy, form, or condition of employment.

The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:

	FCA	NDAA
Coverage	Employee, contractor, or agent	Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor
Protected Conduct	Lawful acts done by the employee, contractor, agent, or associated others (1) in furtherance of an action under the FCA or (2) other efforts to stop 1 or more violations	-Violation of law, rule, or regulation related to a federal contract -Gross mismanagement of a federal contract or grant -Gross waste of federal funds -Abuse of authority relating to a federal contract or grant -Substantial and specific danger to public health or safety
Administrative Exhaustion	File directly in federal court	Must file initially at OIG; can remove to federal court after 210 days
Causation Standard	But-for causation	Contributing factor
Jury Trial	Y	Y
Damages	Double back pay, reinstatement, special damages (emotional distress and harm to reputation), attorney’s fees	Back pay, reinstatement, special damages, attorney’s fees
Statute of Limitations	3 years	3 years

Experienced False Claims Act and NDAA Whistleblower Protection Attorneys

best sexual harassment attorneys Washington DC Maryland Virginia The experienced whistleblower attorneys at Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
Representing whistleblowers disclosing fraud on the government in Congressional investigations.
Training attorneys nationwide at legal seminars and webinars about the NDAA whistleblower protection provisions and the False Claims Act whistleblower provisions.
Representing whistleblowers disclosing fraud on the government in Congressional investigations.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts: