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Critical Legislation to Protect Government Contractor Whistleblowers Heads to President’s Desk

On December 5, 2016, Congress sent to President Obama’s desk S. 795 to make permanent some of the most critical whistleblower protections available for employees of government contractors and subcontractors.  Back in 2013, Congress passed the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”), which, among other things, created a four year pilot program establishing whistleblower protections to employees working for government contractors.  The NDAA’s whistleblower protections – commonly referred to as the McCaskill Amendment (because they were introduced by Senator Claire McCaskill (D-MO)) – mirrored the whistleblower protections that exist for federal government employees.  The McCaskill Amendment, one of the most powerful whistleblower protections available to employees of government contractors, was set to expire on January 1, 2017.  S. 795 makes those protections permanent and expands them, ensuring that all employees of government contractors and subcontractors are protected when speaking out against illegal or improper conduct.

The government funds over $1 trillion in contracts.  Prior to the McCaskill Amendment, employees of government contractors had no recourse if they were retaliated against for blowing the whistle.  Now, employees of government contractors and government subcontractors are protected from retaliation if they disclose information they reasonably believe is evidence of:  (1) Gross mismanagement of a federal contractor or grant; (2) A gross waste of federal funds; (3) An abuse of authority relating to a federal contract or grant; (4) A substantial and specific danger to public health or safety; or (5) A violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.

To gain legal protection from retaliation under this legislation, the employee must disclose the information to one of the following: a member of Congress or a representative of a committee of Congress, an Inspector General (“IG”), the Government Accountability Office, a federal employee responsible for contract or grant oversight or management at the relevant agency, law enforcement, a court or grand jury, or a management official or other employee who has the responsibility to investigate, discover, or address misconduct.

An employee who is targeted for retaliation for engaging in protected activity can file a complaint with the IG of the executive agency that awarded the contract under which the employee is working.  The whistleblower can pursue relief through the IG’s administrative process, or alternatively can file in federal district court after 210 days have elapsed from the initial IG filing.  The causation standard to prove whistleblower claims under the McCaskill Amendment is more favorable than in other types of claims: a whistleblower need only show that his or her whistleblowing was a “contributing factor” to the employer’s retaliatory action.

If you are an employee of a government contractor or subcontractor with knowledge of illegal or improper conduct, or if you have experienced retaliation for whistleblowing, please contact us right away.  The whistleblower lawyers at Correia & Puth, PLLC are committed to ensuring that employees are protected when they take a stand against illegal employer conduct, or waste, fraud, and abuse, and to hold employers accountable for wrongdoing.

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