On July 1, 2013, the 2013 National Defense Authorization Act (“NDAA”) went into effect. This Act is the latest example of the legal trend towards making it easier to achieve “whistleblower” status and providing greater protections when one becomes a whistleblower. Simply put, it is now easier for millions of potential whistleblowers to achieve that status and be a ordered increased protections.
One of the key changes in the NDAA is its expansion of whistleblower protections afforded to employees of government contractors, subcontractors, and grant recipients. While employees of government contractors were already afforded certain strictly defined protections, such as the anti-retaliation provisions of the False Claims Act, the NDAA considerably expands the subject matter which gives rise to those protections. Under the NDAA, a federal employee may raise a reasonable concern about gross mismanagement, gross waste of funds, substantial and specific danger to the public health and safety,or a violation of law relating to federal contracts without fear of retaliation.
Another important change in the NDAA is the expansion of the recognized parties that protected disclosures can be made to. Previously, a whistleblower needed to bring their concerns to federal or state officials before being afforded protected status. Now, a whistleblower can bring their concerns to a contractor’s employee who has the responsibility to investigate, discover, or address misconduct. Needless to say, this is a significant change which if not handled properly by contractors, could lead to the award of a whistleblower’s lost employment benefits and/or legal fees as discussed below.
Therefore, it is likely that most contractors, following an assessment of their compliance program, will need to add measures to ensure compliance with the NDAA. These additional measures may include, but are not limited to, the proper training of middle management, and the implementation of new or revised procedures for handling whistleblower complaints.