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National Defense Authorization Act Expands Whistleblower Protections
Practical Law Legal Update 9-523-4382 (Approx. 4 pages)
National Defense Authorization Act Expands Whistleblower Protections
by PLC Labor & Employment
| Published on 07 Jan 2013 • USA (National/Federal) |
President Obama signed into law the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which expands whistleblower protections for employees of contractors and subcontractors with the Department of Defense (DOD) and the National Aeronautics and Space Administration (NASA) and establishes a four-year pilot program to enhance whistleblower protections for most other federal contractors and subcontractors.
On January 2, 2013, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2013 (NDAA). Among other things, the bill:
- Expands whistleblower protections for employees of contractors and subcontractors with the Department of Defense (DOD) and the National Aeronautics and Space Administration (NASA).
- Establishes a four-year pilot program to enhance whistleblower protections for other federal contractors and subcontractors.
However, the NDAA specifically exempts contractors and subcontractors of intelligence agencies listed in Section 401(a) of 50 U.S.C. 401(a).
Specifically, the NDAA provides that whistleblower protections are extended to:
- Circumstances in which a contractor retaliates against a whistleblower at the request of an executive branch official, unless the request:
- takes the form of a nondiscretionary directive; and
- is within the authority of the official making the request.
- Employees who initiate or provide evidence of contractor or subcontractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a DOD or NASA contract or grant.
Additionally, the NDAA provides that:
- Contractors and subcontractors must inform their employees in writing of the rights and remedies provided under this section in the predominant native language of the workforce.
- Employees' whistleblower rights and remedies may not be waived by any agreement, policy, form or condition of employment.
- Whistleblower complaints must be:
- made to the Inspector General of the executive agency involved; and
- brought within three years after the date on which the alleged reprisal took place.
Under the NDAA's amendments to Section 2409 of Title 10 of the US Code, which largely retain the previous statutory language, an employee of a covered contractor or subcontractor may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing to certain entities information that the employee reasonably believes is evidence of:
- Violations of laws, rules and regulations related to a contract or grant.
- Gross mismanagement of a contract or grant.
- A gross waste of funds.
- An abuse of authority relating to a contract or grant.
- A substantial and specific danger to public health or safety.
In a signing statement on the NDAA, President Obama stated that the whistleblower provisions could be interpreted in a manner that would interfere with his authority to manage and direct executive branch officials. The President stated that he would therefore interpret these provisions consistent with his authority to direct department heads to supervise, control and correct employees' communications with the Congress in cases where these communications would be unlawful or would reveal privileged or confidential information. The statement suggests that the whistleblower provisions may be interpreted somewhat narrowly by the Administration.
For more information on retaliation claims and their defenses under federal law, as well as practical tips for minimizing the risk of experiencing them, see Practice Note: Retaliation.