Image of What laws prohibit defense contractors from retaliating against whistleblowers?

What laws prohibit defense contractors from retaliating against whistleblowers?

False Claims Act Whistleblower Protection for Defense Contractor Whistleblowers

The anti-retaliation provision of the False Claims Act provides robust protection to any employee, contractor, or agent who is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.”  31 U.S.C. § 3730(h).

The False Claims Act whistleblower protection provision protects not only individuals who bring qui tam actions, but also individuals who take steps to expose fraud, including investigating a potential qui tam action or supplying information that could prompt an investigation.  See Neal v. Honeywell Inc., 33 F.3d 860, 864-65 (7th Cir. 1994).

A whistleblower who prevails in an anti-retaliation action under the FCA may recover:

  • reinstatement;
  • double back pay, plus interest;
  • special damages, which include litigation costs, reasonable attorney’s fees, emotional distress, and other noneconomic harm from the retaliation. 31 U.S.C. § 3730(h)(2).

For more information about False Claims Act whistleblower protection in the defense industry, see our FAQs about the False Claims Act whistleblower protection law.

Defense Contractor Whistleblower Protection Act/NDAA Whistleblower Law

The Defense Contractor Whistleblower Protection Act provides robust protection for whistleblowers in the defense industry.  Our article in Practical Law summarizes the elements of a DCWPA claim.

Whistleblower Protections Under the National Defense Authorization Act (w-008-5821)

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

False Claims Act Whistleblower Incentives or Bounties for Disclosing Defense Contractor Fraud

False Claims Act qui tam whistleblowers, also known as relators, have enabled the federal government to recover nearly $30 billion.  In fiscal year 2017 alone, qui tam actions brought by whistleblowers resulted in $3.4 billion in settlements and judgments, and the government paid $392 million in whistleblower awards to whistleblowers. This FAQ summarizes the key aspects of a False Claims Act lawsuit:

Should a defense contractor whistleblower report fraud internally or instead directly to the government?

There are many factors to consider in deciding whether to blow the whistle directly to the government in the form of a qui tam whistleblower lawsuit and which laws offer the best remedy to combat retaliation.  It is important to assess your options at an early stage to avoid waiving claims or rights.  For example, entering into a global release or global waiver with your employer to resolve a retaliation claim could waive your right to recover a qui tam whistleblower award.

False Claims Act Retaliation Damages

Defense Contractor Whistleblower Retaliation Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have represented whistleblowers in the defense industry disclosing fraud and other wrongdoing at government contractors and grantees.  In 2017, Washingtonian named two of our attorneys top whistleblower lawyers.  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.  Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

  • Recently Washingtonian magazine named Jason Zuckerman and Eric Bachman top whistleblower lawyers.
  • 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
  • Bachman and Zuckerman 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 protections.
  • Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.  As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowersinvestigate and disclose complex financial frauds to the government and obtain damages for retaliation.  He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
  • Eric Bachman has substantial experience litigating precedent-setting employment cases.  His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.
  • Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law.  He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

False Claims Act Retaliation Lawyer Client Review

The following client review is from a former senior official at a government contractor:

“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.”

SEC whistleblower rules

Resources About False Claims Act and NDAA Whistleblower Protection

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

Avatar of Jason Zuckerman

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.