Reporting an employer’s alleged wrongdoing (known as “whistleblowing”) can appear to be a very risky undertaking. An employer has a number of weapons to use if retaliation against the whistleblower is contemplated. The whistleblower can be fired or penalized by a reduction in compensation.
The employer can reassign the whistleblower to another job that is more physically demanding than the former position. The employer can also defame the whistleblower by telling competitors that the individual is a chronic whistleblower.
The protections of the Whistleblower Protection Act
The good news is that both federal and state law contain provisions that afford whistleblowers substantial legal protection from retaliation by their employers.
One of the most important protections is contained in the National Defense Authorization Act (“NDAA”), which extended many of the protections originally contained in the Whistleblower Protection Act of 1989 (“WPA”).
The NDAA extended the scope of protections contained in the WPA to cover persons working on a contract with a federal agency.
The statute protects workers from “personnel actions” that are related to the whistleblower’s activities. An employer cannot take any action against an alleged whistleblower, such as suspension, termination, or any other actions that affect the worker’s conditions of employment.
Actions that can be reported
The WPA and NDAA permit workers to report a variety of misconduct without fear of retaliation, including:
- Violations of any law, rule, or regulation related to a federal government contract
- Gross mismanagement
- Gross financial waste of federal funds
- Abuse of authority relating to a federal contract
- Actions that create a substantial risk of harm to the public health or safety
The practical effect of these types of misconduct is that the misconduct must be substantial. If the cited misconduct is not substantial, the protections in the WPA and the NDAA may not apply, and the reporting employee will be subject to the employer’s unrestrained retaliation.
Choose audience for claim carefully
An employee of a defense contractor must take care to bring the claim to the proper agency. For example, a charge of financial wrongdoing should be presented to the General Accountability Office, not the Treasury Department.
Another avenue: the False Claims Act
A third statute that serves much the same purpose as both the NDAA and the WPA is the False Claims Act, a Civil War Era statute that was intended to deter false claims against the government. A successful False Claims Act suit can result in an assessment of treble damages against the perpetrator of the false claim, of which the whistleblower may receive up to 30%.
The whistleblower’s evidentiary burden
Many people who are considering making a whistleblower claim are inhibited by a belief that they must have an airtight case before proceeding. Fortunately for the whistleblower, a case can be started based only on the whistleblower’s “reasonable belief” that the evidence indicates misconduct.
