Protected Whistleblowing Under NDAA Whistleblower Law
The whistleblower protection provisions of the NDAA protect 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.
In construing analogous statutory language in an ARRA retaliation case in Herrera-Castro v. Trabajamos Community Head Start, Inc., 2017 WL 666232 (Feb. 20, 2017), Judge Rakoff rejected the employer’s position that the whistleblower must prove that she subjectively believed that the conduct she complained about actually violated the statute:
Trabajamos argues, first, that Castro did not make a protected disclosure because she did not subjectively believe that the misconduct she reported violated the statute. But the statute requires no such subjective belief. Rather the statute requires only that the whistleblower “reasonably believes” that the information disclosed “is evidence of … a gross waste of covered funds.” Id.Moreover, it would thwart ARRA’s purpose—to encourage and protect reports of misconduct involving covered funds—to require laypeople to form legal conclusions concerning the misconduct they have discovered before coming within the statute’s protection.
Judge Rakoff makes an important point that a prophylactic whistleblower protection statute should not be construed to require the whistleblower to form a legal conclusion to be protected against retaliation.
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.
And for information about False Claims Act whistleblower protection, see our answer to frequently asked questions about the False Claims Act whistleblower protection law.
False Claims Act Whistleblower Protection and NDAA/Defense Contractor Whistleblower Protection
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|
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.
- 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. 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.
- Dallas Hammer has extensive experience representing whistleblowers at government contractors 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.
- Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Stock developed 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.
- 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.
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
- Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff
- CFPB official wants to silence a whistleblower before he can talk to Congress