A covered employee is protected from reprisals where he or she discloses to, among other persons or bodies, a Member of Congress, an Inspector General, the Government Accountability Office, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of Department of Justice or other law enforcement agency, a court or grand jury, or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate and remedy misconduct, any information that the disclosing employee reasonably believes is evidence of:
- “gross mismanagement” of a federal contract;
- a “gross waste” of federal funds;
- a “violation of law, rule, or regulation related to a Federal contract”;
- an abuse of authority relating to a Federal contract or grant; or
- a substantial and specific danger to public health or safety.
To go along with the enhanced protections, the law also provides a very low burden of proof. To prevail, the employee plaintiff in an NDAA whistleblower action need only show that the protected disclosure was a contributing factor in the adverse personnel action. As with many other whistleblower and anti-retaliation law, remedies for employer violations include reinstatement, back pay, and attorney fees and costs. Additionally, there is no statutory limit to the amount of compensatory damages (emotional distress damages) an employee may seek or be awarded.
Federal contractors need to be particularly cognizant of the application of the NDAA whistleblower protections. To best protect themselves, these employers should review their reporting and investigatory procedures, and ensure that supervisory employees are trained on how to respond to disclosures.
By: Ethan Don
First Published: The Law Firm of Paley Rothman Law Blog
