Whistleblower Protections for Employees of Government Contractors and Grantees
The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) contain strong whistleblower protection provisions for employees of government contractors and grantees, and protect a broad range of whistleblower disclosures.
The whistleblower lawyers at Zuckerman Law have substantial experience representing whistleblowers at government contractors and grantees in whistleblower retaliation claims. And two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures. To schedule a free preliminary consultation, click here or call us at 202-262-8959.
For information about the NDAA whistleblower protection law, see our post Congress Strengthens Whistleblower Protections for Federal Employees and our Practical Law Practice Note: “Whistleblower Protections Under the National Defense Authorization Act.”
Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act.
False Claims Act Whistleblower Retaliation Law Protecting 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. Recently the Second Circuit held that a refusal to violate the False Claims Act is protected under the FCA’s anti-retaliation provision.
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 Federal 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
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, which 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. Merit Systems Protection Board, 176 F. App’x 133, 135 (Fed. Cir. April 10, 2006) (citing White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994));
- A gross waste of federal funds, which is “more than [a] debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the government.” Chambers v. Department of the Interior, 515 F.3d 1362, 1366 (Fed. Cir. 2008) (quoting Van Ee v. Environmental Protection Agency, 64 M.S.P.R. 693, 698 (1994));
- An abuse of authority relating to a federal contract or grant, which is “an arbitrary or capricious exercise of power … that adversely affects the rights of any person or that results in personal gain or advantage to … preferred other persons.” Doyle v. Department of Veterans Affairs, 273 F. App’x 961, 964 (Fed. Cir. April 11, 2008) (quoting Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996)); or
- A “substantial and specific danger to public health or safety” (alleging the nature and likelihood of the harm, as well as when the harm may occur), or a “violation of law, rule or regulation” related to a federal contract. See Chambers, 515 F.3d at 1367, 1369.
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:
Employee, contractor, or agent
|Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor|
|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
|File directly in federal court||Must file initially at OIG; can remove to federal court after 210 days|
|But-for causation||Contributing factor|
Double back pay, reinstatement, special damages (emotional distress and harm to reputation), attorney’s fees
|Back pay, reinstatement, special damages, attorney’s fees|
|3 years||3 years|
Federal Contractor Whistleblower Protection
- How does the NDAA whistleblower retaliation law protect whistleblowers at federal contractors and grantees?
- Must a NDAA Whistleblower Retaliation Plaintiff Prove a Subjective Belief of a Violation?
- What whistleblowing is protected under the False Claims Act anti-retaliation provision?
- Does the False Claims Act protect whistleblowers against retaliation?
- Is whistleblowing in the course of performing job duties protected under the False Claims Act?
- Does the participation of a supervisor with knowledge of protected whistleblowing in the decision to take an adverse personnel action prove knowledge under the False Claims Act whistleblower protection provision?
- Can a False Claims Act whistleblower retaliation plaintiff obtain double back pay (two times lost wages and benefits)?
- Are employees whose jobs require investigating fraud against the government required to meet a higher pleading standard?
- Are “duty speech” disclosures protected under the False Claims Act?
- What protections are available to federal contractor whistleblowers under the NDAA whistleblower protection law?
- Can False Claims Act whistleblowers use confidential documents to report fraud to the government?
- What is the purpose of the False Claims Act whistleblower protection provision?
- Does the False Claims Act protect a whistleblower who refuses to violate the Act?
Guide to NDAA/Defense Contractor Whistleblower Law
For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.
In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.
Topics covered include:
- Protected whistleblowing under the NDAA.
- The scope of coverage of the NDAA’s whistleblower protection provisions.
- The reasonable belief standard governing NDAA protected whistleblowing.
- Proving “contributing factor” causation
- The same-decision affirmative defense
- Remedies or damages available to prevailing NDAA whistleblowers.
Testimonial from Federal Contractor Whistleblower
A former client represented by Zuckerman Law in a NDAA whistleblower retaliation claim offered the following review of Jason Zuckerman on Avvo:
“I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit.
Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation.”
WHEN REVIEWING INFORMATION ABOUT TESTIMONIALS OR STATEMENTS REGARDING A LAWYER’S QUALITY, CONSIDER THAT 1) THE FACTS AND CIRCUMSTANCES OF YOUR CASE MAY DIFFER FROM THE MATTERS IN WHICH RESULTS AND TESTIMONIALS HAVE BEEN PROVIDED; 2) ALL RESULTS OF CASES HANDLED BY JASON ZUCKERMAN ARE NOT PROVIDED AND NOT ALL CLIENTS HAVE GIVEN TESTIMONIALS; AND 3) THE TESTIMONIALS PROVIDED ARE NOT NECESSARILY REPRESENTATIVE OF RESULTS OBTAINED BY JASON ZUCKERMAN OR OF THE EXPERIENCE OF ALL CLIENTS OR OTHERS WITH JASON ZUCKERMAN. EVERY CASE IS DIFFERENT, AND EACH CLIENT’S CASE MUST BE EVALUATED AND HANDLED ON ITS OWN MERITS.
Experienced False Claims Act and NDAA Whistleblower Protection Attorneys
The experienced whistleblower attorneys at leading whistleblower law firm 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.
- Litigating False Claims Act retaliation cases.
- Representing qui tam relators in False Claims Act cases.
- Representing whistleblowers disclosing fraud on the government in Congressional investigations.
- Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.
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. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.
- 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, including a matter resulting in the removal of an Inspector General.
We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:
- Boosting Contractor Employee Whistleblower Protections, Law 360 (December 2016)
- New Tools to Combat Whistleblower Retaliation, Taxpayers Against Fraud Education Fund Quarterly Review, Vol. 57 (October 2010)
- GAO Report Calls for Improvements in Government Contractor Whistleblower Protections
- False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection
- NDAA Provides Robust Whistleblower Protection
- FAR Amendment Bars Agencies from Subsidizing Whistleblower Retaliation
- NDAA Contractor Whistleblower Protection Law Highly Effective in Rooting Out Fraud
- Congress Enacts Anti-Gag Provision in Cromnibus Spending Bill
- Whistleblower Lawyer Jason Zuckerman Will Speak About False Claims Act Litigation at Taxpayers Against Fraud Conference
- Whistleblower Protections Under the Whistleblower Protection Act, Practical Law (October 2016)
- Whistleblower Lawyer Jason Zuckerman Quoted in National Law Journal
- Whistleblower Lawyer Jason Zuckerman Quoted About Federal Employee Whistleblower Rights
- Washington Post Quotes Whistleblower Attorney Jason Zuckerman About Chilling Effect of Insider Threat Program
- How to foster a more ethical culture
- Whistleblower Lawyer Jason Zuckerman Quoted About MacLean Whistleblower Protection Act Case
- Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff
- CFPB official wants to silence a whistleblower before he can talk to Congress
Frequently Asked Questions Qui Tam Whistleblower Rewards
- What types of false claims are prohibited by the False Claims Act?
- What is the first-to-file bar in False Claims Act qui tam cases?
- What is the requirement to file a False Claims Act qui tam action under seal?
- What is the statute of limitations for a False Claims Act qui tam action?
- What is the public disclosure bar in the False Claims Act?
- What is materiality under the False Claims Act?
- What is “Scienter” Under the False Claims Act?
- Is a Violation of the Anti-Kickback Law Also a Violation of the False Claims Act?
- Does the False Claims Act Prohibit Bid Rigging?
- Does the False Claims Act Prohibit Fraudulent Inducement of a Contract?
- Can a violation of Good Manufacturing Practices give rise to False Claims Act Liability?
- Is there a heightened pleading requirement for False Claims Act qui tam cases?
- Does the False Claims Act authorize treble damages?
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