A 4-Point Guide for Defense Contract Whistleblowers

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Workers at companies that have a federal contract with the U.S. government for national security and defense work often have access to critically important information about these extremely sensitive transactions. In some cases, that information indicates that the defense contractor is committing crimes or defrauding the government.

Blowing the whistle by gathering and then disclosing that information to the government accountability office or other law enforcement agency is risky but can be rewarding. It can also lead to a substantial whistleblower award if you play your cards right.

Here are four things to know about the process.

1. You Have Legal Protections from Retaliation

One of the most important things that potential whistleblowers need to know is that there are federal laws that insulate them from workplace retaliation for their whistleblowing activities.

One of the most important of these is the Whistleblower Protection Act of 1989 (WPA). However, this statute was drastically altered by the National Defense Authorization Act (NDAA), which extended the legal protections of the WPA beyond just federal employees of the Department of Defense. Under the terms of the NDAA, those protections reached private sector employees who work for federal government contractors or subcontractors of a relevant agency.

Those protections are from retaliatory conduct in the workplace that stems from your whistleblowing activity. Supervisors and employers are prohibited from taking retaliatory action against you for blowing the whistle on misconduct under the terms of the WPA and the NDAA. That retaliatory action can be any of the following:

  • Termination
  • Suspension
  • Refusal to promote
  • Transferring or reassigning you to a worse position or refusing to transfer or reassign you to a better one
  • Any change to the terms of your employment, including workplace benefits or responsibilities

If you can show that any of these workplace consequences are the result of your whistleblowing activities, then you have a private cause of action against your employer. This can take the form of retaliation or a wrongful termination lawsuit that can recover back wages and potentially even reinstatement. Retaliation is prohibited even if a member of the executive branch asks for it unless the request comes in a non-discretionary order and the executive branch official making the request has the authority.

2. The Misconduct Does Not Need to Amount to a Crime

That misconduct on which you can blow the whistle can take a variety of forms, not all of which are criminal in nature. For example, under the WPA and the NDAA, you can blow the whistle on:

  • Gross mismanagement
  • Gross waste of federal funds
  • Abuse of authority relating to a federal contract or any
  • Substantial and specific danger to the public health or safety
  • Violation of law, rule, or regulation related to federal government contracts

However, if it is not criminal, then it does have to be severe in order for it to trigger whistleblower protections under the Whistleblower Protection Act.

For example, if you are reporting a federal employee responsible for mismanagement or wasted funds to a management official, then it has to be a problem of “gross” proportions. Personnel decisions or financial expenses that are debatable or that reasonable minds could disagree on are not enough. According to federal appellate courts, whistleblower protections are only triggered if they report mismanagement or financial waste severe enough that they could imperil the mission of the federal agencies.

As for dangers to public health or safety, these also have to be severe and specific – reporting vague threats does not suffice.

This can create a dilemma for whistleblowers, though. If the misconduct that they have discovered is not prohibited by law or regulation, it can be difficult to say whether it is bad enough to confer legal immunity from workplace retaliation. This can leave a potential whistleblower uncertain about their next moves, as their job might still be at risk if they act.

3. Many Defense Contractors Can Invoke the False Claims Act

While the WPA and the NDAA work to insulate whistleblowers from workplace retaliation for their activities, it is the False Claims Act that many defense contractor whistleblowers strive to work under.

The False Claims Act (31 U.S.C. §§ 3729 et seq.) is a federal law that forbids people and companies from making false claims for compensation against the U.S. government. It was originally enacted during the Civil War to prevent bad actors from providing goods or services to the Union Army and then fraudulently billing the government for them.

While the law has been amended several times, the general idea of it remains the same: Companies that deal with the U.S. government can face a civil lawsuit or even a criminal case under the False Claims Act if they submit false bills for goods or services provided – or for goods or services that were not provided.

Importantly, the False Claims Act relies on relators, or private citizens, to enforce its terms. Individuals with access to information related to a false claim for compensation can forward that information to law enforcement. If prosecutors of an appropriate district court choose not to pursue the claim, can file a lawsuit on behalf of the government.

If successful in the judicial or administrative proceeding, these relators can recover a healthy portion of the amount that was defrauded – an amount that is tripled under the terms of the False Claims Act.

Because of these financial motivations, defense contractors with evidence that the government is being defrauded often try to build a whistleblower case that can proceed under the False Claims Act.

4. You Do Not Need an Airtight Case in Order to Blow the Whistle

Finally, one thing that many whistleblowers forget is that they do not need to assemble a perfect case that will prove their claim beyond a reasonable doubt before blowing the whistle on misconduct. The WPA and the NDAA both provide legal protections for people who report information that they “reasonably believed” to indicate signs of misconduct.

As Dr. Nick Oberheiden, founding partner of Oberheiden P.C., the national whistleblower law firm for defense contractors, often tells prospective clients, “It is not uncommon for whistleblowers to come forward with incomplete cases. In fact, it would be unreasonable to demand that their initial reports be so strong that there is no defending against them. After all, whistleblowers are rarely professional investigators and frequently only have limited access to the information that will end up supporting their claims of wrongdoing. Even if you think that your case is incomplete, it can still be worthwhile to reach out to a whistleblower lawyer with experience in the defense field. They can let you know how to build your case further and also whether there are other, similar whistleblower cases that are also pending.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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