Senate Approves Amendment to Defense Bill that Expands Whistleblower Protections, Rejects Amendment Eliminating Contractor Cuts
Updated November 5, 2012
This week the Senate considered a number of amendments to the National Defense Authorization Act for Fiscal Year 2013 (S. 3254) that would affect civilian employees and federal contractors. On November 29, 2012 the Senate unanimously agreed to an amendment (S. Amdt. 2942) (pdf) introduced by Sen. Claire McCaskill (D-MO) to the Defense bill that would extend whistleblower rights and protections to federal contractors and their employees. The amendment would add Section 844A, Whistleblower Protections For Non-Defense Contractors, to the Defense bill that includes the following whistleblower provision:
An employee of a contractor, subcontractor, or grantee may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing . . . information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
Protected disclosures could be made to a member of Congress or a representative of a committee of Congress; an inspector general; the Government Accountability Office (GAO); a federal employee responsible for contract or grant oversight or management at the relevant agency; an authorized official of the Department of Justice (DOJ) or other law enforcement agency; a court or grand jury; or a management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.
Employees or contractors who believe they have been retaliated against for whistleblowing would have three years to submit a complaint to the Inspector General of the executive agency involved. An aggrieved employee would be eligible to receive equitable relief and compensatory damages, including reinstatement, backpay, attorneys’ fees and costs associated with filing the complaint. An employee who has exhausted these administrative remedies would be permitted to file a claim in federal district court.
These whistleblower rights could not be waived under any agreement, policy, or form, including any predispute arbitration agreement, other than an arbitration provision in a collective bargaining agreement. Agency heads would be required to ensure that all contractors, subcontractors, and grantees of the agency notify their employees in writing of the whistleblower rights and remedies provided under this amendment.
Sen. McCaskill last introduced provisions similar to those included in the above amendment as standalone legislation – the Non-Federal Employees Whistleblower Protection Act (S. 241) – in January 2011. Although the Senate Committee on Homeland Security and Governmental Affairs approved that bill on April 25, 2012, it failed to advance any further. Now that these protections are incorporated into a larger authorization bill, it has a greater chance of passage.
Contractor and Civilian Cuts
On November 30 the Senate rejected another amendment offered by Sen. Ben Cardin (D-MD) that sought to strike a provision (Sec. 341) of the Defense bill added by Sen. John McCain (R-AZ) that applies a 5% across-the-board cut to Defense Department contractors and civilian employees. The White House has already threatened to veto the bill on account of various provisions, including section 341. In a Statement of Administration Policy, (pdf) the Administration emphasizes that it:
objects to section 341, which would reduce funding for the civilian and contractor workforce by a rate that is at least equal to the percentage of funding saved from the planned reductions in military personnel end strength. This would require savings in the civilian and service contractor workforces in excess of $5 billion over planned savings through FY 2017. The Administration believes the size of the civilian workforce should be determined based on workload and funding, not on arbitrary comparisons to the military. To comply with this legislation, the Department would need to significantly divest workload and impose workforce caps.
Update: On November 4, 2012, the Senate incorporated S. 3254 into the House version of the National Defense Authorization Act for FY 2013 (H.R. 4310) as an amendment, and approved the measure by unanimous consent.