Legal Issues: Congress Expands Whistleblower Protections By Andrew Hallowell and Michael Pidgeon The 2008 National Defense Authorization Act that was signed into law on January 28 broadens the laws concerning retaliation against whistleblowers who are employees of defense contractors. Defense contractors should be aware of the new, stricter rules governing treatment of such whistleblowers and the remedies available to those individuals. The current statute governing defense contractor whistleblowers has been in effect since 1986. This statute, 10 U.S.C. § 2409, states that an employee: [M]ay not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an authorized official of an agency or the Department of Justice information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract). 10 U.S.C. § 2409(a) (emphasis added). Under this statute, if an employee believes that his employer has violated the law, he may bring the matter to the attention of the Office of Inspector General. If the OIG decides to investigate, it is required to make a report of the investigation to the complainant, the contractor and the head of the agency. The agency is then responsible for determining the remedy. It may require that the contractor take affirmative action to abate the reprisal, as well as award back pay and other employment benefits, in addition to attorneys’ fees and costs. The agency may bring suit in federal district court to enforce its orders, and the court may award additional relief, including injunctive relief, compensatory relief, and exemplary relief. The revision of this law, which will take effect at the beginning of Fiscal Year 2008, broadens the current law in several respects. First, the new provisions protect a wider range of possible problems the employee might report, to include not just violations of contract-related laws, but also matters such as “gross mismanagement,” “gross waste” of funds, and “health or safety” issues. Second, the new provisions do not necessarily require the employee’s complaint to be verified or valid. Rather, the employee need only have a “reasonable belief” that wrongdoing has occurred. If so, he or she will be entitled to whistleblower protection under the statute. Third, the new provisions also expand the possible parties to whom an employee may complain and trigger whistleblower protection. The current law only protects a whistleblower after he or she complains to a “Member of Congress, an authorized official of an agency or the Department of Justice.” The new provisions add to this list the following parties: (1) a representative of a committee of Congress; (2) an inspector general; (3) the Government Accountability Office; and (4) a Department of Defense employee responsible for contract oversight or management. The broadening of the whistleblower law will require defense contractors to exercise greater vigilance to ensure that they do not engage in wrongful retaliatory conduct. Finally, it also significant that the new provisions impose deadlines on the inspector general and the head of the agency in enforcing the statute against defense contractors. If these deadlines lapse, or if there is a finding denying the complainant relief, the complainant may bring a de novo action in federal district court. In response to the expanded scope of the new law, defense contractors are well-advised to take extra precautions within their companies to avoid retaliatory conduct against whistleblowers. Contractors should not only fully advise their managers and supervisory personnel of their anti-retaliatory obligations when wrongdoing is reported, but they should also consider the adoption of appropriate policies and procedures that are consistent not only with the new law, but also other federal and state whistleblower statutes. Andrew P. Hallowell is a partner and Michael Pidgeon is an associate with Pargament & Hallowell, PLLC, practicing in the areas of corporate law, government contracting and intellectual property.  For further information call 202-775-0707 or write to ahallowell@pandhlaw.com.