National Defense Authorization Act: Whistleblower Protections for Federal Contractors

September 26, 2013

The employees of Federal contractors now also have certain “whistleblower” type protections.  The National Defense Authorization Act (NDAA) of FY13 extends the following whistleblower protections to federal contractors:

  • Permanently covers all employees of Defense Department contractors, subcontractors or grant recipients; and covers the same universe for all other non-intelligence community contracts or grants in a four-year pilot, pending a GAO study and recommendations on making the rights permanent.
  • Similar to the WPEA protections for federal employees, the NDAA 2013 provisions protect contractors from disclosures of information that the employee reasonably believes are evidence of illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety.
  • Extends protections to whistleblowers harassed or fired by a contractor at the government's direction.
  • Provides whistleblowers with a three-year statute of limitations to act on their rights.
  • Allows contractor whistleblowers to file retaliation complaints with the relevant Office of Inspector General (OIG), which then must conduct an investigation and make recommendations to the respective agency head.
  • If the relevant agency head fails to provide requested relief within 210 days, the whistleblower may go to federal district court for de novo proceedings and have the case decided through a jury trial. The Whistleblower Protection Act legal burdens of proof will determine who wins the lawsuit or prevails in the OIG investigation. Whistleblowers who win are entitled to relief making them "whole," including compensatory damages without caps.
  • With such court cases, contractors may not receive government reimbursement of legal fees for the retaliation case, provided the whistleblower receives relief or the contractor is fined.
  • Provides "all circuits" access to appeals courts for whistleblowers to challenge adverse administrative or district court rulings.
  • Prohibits any cancellation of rights and remedies through job prerequisites or other agreements.
  • Mandates that all affected employers must provide all contractor employees with written notice of these new rights and remedies.