Protection of Whistleblowers is Expanded by Congress

The National Defense Authorization Act for Fiscal Year 2008 that was signed into law on January 28, 2008 broadens the laws concerning retaliation against whistleblowers who are employees of defense contractors.

The current statute governing defense contractor whistleblowers has been in effect since 1986.  This statute, 10 U.S.C. § 2409(a), states that an employee “may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an authorized official of an agency or the Department of Justice information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract).”

The amended law, which will take effect at the beginning of Fiscal Year 2008, broadens the current law in several respects.

First, the new provisions protect a wider range of possible problems the employee might report, to include not just violations of contract-related laws, but also, matters such as “gross mismanagement,” “gross waste” of funds, and “health or safety” issues.

Second, the new provisions do not necessarily require the employee’s complaint to be verified or valid.  Rather, the employee need only have a “reasonable belief” that wrongdoing has occurred.  If so, he or she will be entitled to whistleblower protection under the statute.

Third, the new provisions also expand the possible parties to whom an employee complaint will trigger whistleblower protection.  The current law only protects a whistleblower after he or she complains to a “Member of Congress, an authorized official of an agency or the Department of Justice.”  The new provisions add to this list the following parties: (1) a representative of a committee of Congress; (2) an Inspector General; (3) the Government Accountability Office; and (4) a Department of Defense employee responsible for contract oversight or management.

The broadening of the current whistleblower law in the above respects will require defense contractors to exercise greater vigilance to ensure that they do not engage in wrongful retaliatory conduct.

In response to the expanded scope of the new law, defense contractors are well-advised to take extra precautions within their companies to avoid retaliatory conduct against whistleblowers.  Contractors should not only fully advise their managers and supervisory personnel of their anti-retaliatory obligations when wrongdoing is reported, but they should also consider the adoption of appropriate policies and procedures that are consistent not only with the new law, but also other federal and state whistleblower statutes.