| American Contractors in Iraq Defense Contractor Whistleblower Protections By Debra Katz |
| DEFENSE CONTRACTOR WHISTLEBLOWER PROTECTIONS Debra S. Katz The wars in Afghanistan and Iraq have seen unprecedented levels of private defense contractors in prominent military support and reconstruction roles. This burgeoning niche is in addition to the multibillion dollar defense contracting industry already in existence prior to the most recent military operations. The lure of lucrative government contracts, combined with the lives and taxpayer dollars at stake in the performance of those contracts, necessitates whistleblower protections for defense contractors and their employees. This protection is found in 10 U.S.C. § 2409. There is very little case law interpreting the law’s provisions. A. What Whistleblowing Activities are Protected? Under the defense contractor whistleblower law, an employee of a defense contractor is protected for making disclosures to one of several entities of misconduct by his or her employer. To be protected by the act, the employee must reasonably believe that she has information that evidences: (1) “gross mismanagement of a Department of Defense contract or grant;” (2) “a gross waste of Department of Defense funds;” (3) “a substantial and specific danger to public health or safety;” or (4) “a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant.” 10 U.S.C.A. § 2409(a) (2008). Protection of reprisal is available to employees who disclose such information to “a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management, or an authorized official of an agency or the Department of Justice.” Id. B. What Employers are Covered? The term “contractor” is defined broadly within the statute to mean “a person awarded a contract with an agency.” 10 U.S.C.A. § 2409(e)(4) (2008). Covered agencies include the Department of Defense, the Army, the Navy, the Air Force, the Coast Guard, and the National Aeronautics and Space Administration (NASA). See 10 U.S.C.A. § 2303(a) (2008). C. What Retaliation is Prohibited? Under the statute, a contractor may not discharge, demote, or otherwise discriminate against an employee for engaging in any of the forms of protected activity described above. 10 U.S.C.A. § 2409(a) (2008). D. What is the Litigation Process? An employee alleging reprisal for protected activity under the law must file a complaint with the Inspector General (“IG”) of the Department of Defense in most cases or with the IG of NASA if the complaint concerns NASA. 10 U.S.C.A. §2409(b)(1) (2008). Unlike most whistleblower statutes, the defense contractor anti-reprisal law does not contain a statute of limitations for filing a complaint. If it does not find that the complaint is frivolous, the IG has 180 days to investigate it and submit a report to the complainant, the respondent contractor, and the head of the relevant agency with whom the private party contracted. 10 U.S.C.A. §2409(b)(1), (2)(A) (2008). If the agency denies relief or fails to file an order granting relief within 210 days after the filing of the complaint, the complainant may file in federal district court, without regard to the amount in controversy. 10 U.S.C.A. §2409(c)(2) (2008) Either the complainant or the respondent may request a jury trial. Id. E. What are the Available Remedies? Within 30 days after receiving a report from an Inspector General regarding the whistleblower complaint, the head of the relevant agency may determine whether the employee was subjected to reprisal by the contractor and may deny or grant relief. 10 U.S.C.A. §2409(c)(1) (2008). There are several available forms of relief. The broadest is an order that the contractor “take affirmative action to abate the reprisal,” which is a general make-whole provision designed to restore the pre- retaliation status quo. 10 U.S.C.A. §2409(c)(1)(A) (2008). More specifically, the act mentions as possible remedies reinstatement, compensation (including back pay), employment benefits, and a restoration of pre-reprisal conditions of employment. 10 U.S.C.A. §2409(c)(1)(B) (2008). Additionally, a successful claimant may obtain reasonable attorneys’ fees and expenses, including expert witness fees. 10 U.S.C.A. §2409(c)(1)(C) (2008). © Copyright 2008, Debra S. Katz, Katz, Marshall & Banks, LLP. Debra S. Katz is a partner with Katz, Marshall & Banks, LLP, a plaintiffs’ employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and whistleblower matters. |