NDAA Protected Whistleblowing
The scope of protected whistleblowing under the NDAA whistleblower protection provisions 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 Inspector General, 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.
The scope of actionable adverse actions is broad and goes beyond tangible personnel actions affecting pay. For example, in Casias v. Raytheon, a Colorado district judge held that an employee that was reassigned, but experienced no reduction in pay, no change in benefits, no change in title, and no change in supervisor, could proceed to trial in a Defense Contractor Whistleblower Protection Act case. Two aspects of the reassignment rendered it an adverse action: 1) Mr. Casias went from supervising around 35 employees to supervising two; and 2) he went from developing and running test procedures on software to developing software test scripts.
Retaliation is prohibited even if it is undertaken at the request of a government official. 10 USC § 2409(a)(3)(B). In other words, the contractor usually cannot raise an “only following orders” defense. Wilczynski v. Loyal Source Governement Services LLC, No. 18-cv-2973-WJM-KMT, 2020 WL 1076125 (D. Colo. 03/06/2020).
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 confidential consultation, click here or call us at 202-262-8959.
NDAA/Federal Contractor Whistleblower ProtectionWhistleblower Protections Under the National Defense Authorization Act (w-008-5821)
Remedies/Damages for NDAA Whistleblower Retaliation
Remedies include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs. Attorney fees can be substantial. In Cejka v. Vectrus Systems Corp., 2019 WL 8198090 (D. Colo. Feb. 21, 2019), the court awarded $2,719,225.50 in lodestar fees for a recovery of $620,105.00 from the jury, as adjusted by prejudgment interest.
Prohibited Retaliation Against Government Contractor Whistleblowers
False Claims Act Whistleblower Retaliation
Whistleblowers that have suffered retaliation for disclosing fraud on the government or attempting to stop fraud on the government can also bring a retaliation claim under the whistleblower protection provision of the False Claims Act.
Some of the advantages of the False Claims Act’s anti-retaliation provision include double back pay and no requirement to exhaust administrative remedies (as opposed to NDAA retaliation claims, which must be filed initially with an Inspector General). The NDAA protects a broader range of disclosures and the burden of proof is more favorable to whistleblowers than the burden under the FCA.
The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:
|False Claims Act Whistleblower Protection||NDAA/Defense Contractor Whistleblower Protection Act|
|Coverage||Employee, contractor, or agent of federal contractor||Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor|
|Scope of Protected Conduct (protected whistleblowing)||Protects 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||Protects disclosures to employer or the government concerning:
-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||No exhaustion requirement; file directly in federal court||Must file initially at OIG and after 210 days, can remove claim to federal court|
|Causation Standard||"But for" causation||Contributing factor causation|
|Damages||Double back pay, reinstatement, uncapped special damages (emotional distress and harm to reputation), attorney’s fees||Back pay, reinstatement, uncapped special damages, attorney’s fees|
|Statute of Limitations||3 years||3 years|
Testimonials from Federal Contractor Whistleblowers
Former clients represented by leading whistleblower firm Zuckerman Law in NDAA whistleblower retaliation claims offered the following reviews 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 Qui Tam and NDAA Whistleblower Protection Attorneys
The experienced whistleblower attorneys at Zuckerman Law have substantial experience representing whistleblowers at government contractors and grantees disclosing fraud and other wrongdoing.
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.
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.
Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws, and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.
- U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
- Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Stock developed an expertise in financial statement analysis and internal controls testing and fraud recognition. He uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government.
- Dallas Hammer has extensive experience representing whistleblowers in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
- Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases. He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws. Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
- Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
- We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
- Our attorneys have been quoted by and published articles in leading business, accounting, and legal periodicals, including The Wall Street Journal, Forbes, CNBC, MarketWatch, Vox, Accounting Today, Going Concern, Law360 – Expert Analysis, Investopedia, The National Law Review, inSecurities, Government Accountability Project, S&P Global Market Intelligence, Risk & Compliance Magazine, The D&O Diary, The Compliance and Ethics Blog, Compliance Week and other printed and electronic media.
NDAA Whistleblower Resources
Zuckerman Law has 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
- CFPB official wants to silence a whistleblower before he can talk to Congress
There is mixed authority as to whether disclosing a hostile work environment or a violation of the anti-discrimination laws can be protected under the NDAA in that such disclosures implicate FAR violations. In January 2018, the DoD OIG found that Leidos violated Section 827 of the NDAA by refusing to include a subcontractor in a follow-on bridge contract following her complaints about a hostile work environment. The OIG’s report concluded that such disclosures are protected under the NDAA because they implicate Defense Acquisition Regulation 52.222-8, Equal Opportunity. But in Sargent v. Pompeo, 2020 WL 5505361(D.DC Sept. 11, 2020), Judge Nichols held that Title VII alone cannot serve as the “law, rule or regulation related to a Federal contract” for which reports of a violation trigger § 4712’s protections because it is generally applicable to all employers, regardless of whether they engage in government contracting.