In a recent Compliance Week article (subscription required), Steve Pearlman, co-head of Proskauer’s Whistleblowing & Retaliation Group, commented on the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which President Obama recently signed into law to enhance whistleblower protections for employees of contractors and subcontractors vis-à-vis the Department of Defense and National Aeronautics and Space Administration, and establish a 4-year “pilot program” to strengthen whistleblower protections for all other federal executive agency contractors and subcontractors. Our posts discussing these expansive new whistleblower protections can be accessed here and here.
Pearlman warns in the article that the NDAA “creates a lopsided playing field in favor of employees,” requiring government contractors to handle complaints with “great sensitivity” to avoid the “low tripwire” for retaliation claims.
Pearlman’s concerns include the “very amorphous terms” found in the NDAA pilot program provision prohibiting retaliation against an employee of a contractor or subcontractor of a federal executive agency – excluding the intelligence community – for disclosing: “gross mismanagement” of a federal contract or grant; “gross waste” of federal funds; “abuse of authority” relating to a federal contract or grant; violation of law, rule, or regulation related to a federal contract or grant; or substantial and specific danger to public health or safety. Pearlman indeed questions, “What exactly constitutes ‘gross [mis]management,’ ‘gross waste’ and ‘abuse of authority’?”
Pearlman also speaks to the concerns that President Obama expressed in his signing statement regarding the vague language of the pilot program. Analogizing “President Obama’s concern about whistleblowers leaking sensitive government information [to] employers’ concerns about whistleblowers leaking confidential trade secrets or proprietary information,” Pearlman stresses the “tremendous threat to employers.”
Given the potential breadth of the NDAA’s pilot program, Pearlman advises that federal contractors should make certain that employees reporting alleged misconduct suffer “no repercussions whatsoever.”