A Guide for Defense Contract Whistleblowers: 5 Things to Know
Thursday, February 8, 2024

People who work for defense contractors in the United States of America have access to information that can implicate national security concerns. If you uncover worrying signs of misconduct, defense contractor fraud, or even criminality, you can blow the whistle by reporting the information to the appropriate law enforcement agency. In doing so, you may have legal protections from retaliation and may even be entitled to a substantial whistleblower reward for your troubles.

Here are five things to know about your rights as a defense contractor whistleblower.

  1. Defense Contractor Workers are Protected from Retaliation

One of the most pressing concerns that potential whistleblowers have is whether they can be fired for bringing the damning information that they have found to light. After all, the evidence usually runs contrary to the whistleblower’s employer – whether by imperiling the employer’s often lucrative contract with the government or by revealing the employer’s own misconduct.

The good news is that the legal insulation provided by the Whistleblower Protection Act of 1989, or WPA, was extended by the National Defense Authorization Act, or NDAA, beyond just federal employees in the defense field. While the WPA typically only covers federal employees, the NDAA explicitly expands its protections to anyone working on a contract or a grant with federal agencies. This includes all of the employees of most defense contractors and even their subcontractors.

This is important because it insulates potential whistleblowers from “personnel actions” that are related to their whistleblowing activities, such as:

  • Suspension
  • Termination
  • Any other workplace action that affects the terms and conditions of the whistleblower’s employment

So long as one of these personnel actions is because of your decision to reveal sensitive information, it is prohibited by federal law. If such an action is taken, anyway, you have a private right of action against your employer – generally in the form of a wrongful termination claim.

  1. You Can Blow the Whistle on a Variety of Types of Misconduct

The WPA and the NDAA insulate whistleblowers who report a variety of misconduct, including:

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

Importantly, though, these violations have to be substantial in order to support a whistleblower claim – even if the federal employee responsible technically breaks the law.

When reporting “gross mismanagement” or the “gross waste of funding” to other law enforcement agency, whistleblowers have to show that the misconduct is significant enough that it imperils the very mission of the defense agency. If the financial or personnel decisions are such that reasonable minds could differ about how to proceed, that will not support a whistleblower claim.

Even legal violations must be substantial – or at least not trivial – to support a whistleblower action under the WPA and the NDAA. Just because the misconduct violates federal law does not mean that it is enough to warrant a whistleblower claim.

This can pose a dilemma for whistleblowers. If the misconduct is not severe enough or does not bring danger to public health, it can fail to trigger the legal workplace protections afforded by the WPA and NDAA. This can leave whistleblowers exposed to retaliation with no legal recourse from the appropriate district court.

  1. WPA Claims Must Be Brought to Specific Audiences

Defense contractors who file whistleblower claims must bring the information to the attention of the relevant agency in order to secure whistleblower protections. Appropriate audiences are any of the following:

  • Members of Congress
  • An Inspector General
  • The Government Accountability Office (GAO)
  • Federal employees responsible for oversight at the relevant government agency
  • A Department of Justice (DOJ) or other law enforcement official
  • A court or a grand jury
  • A management official for the contractor or subcontractor who is responsible for investigating alleged misconduct

Note that this listing includes people and entities that are both external and internal to the whistleblower’s employer.

Taking the information elsewhere will fail to trigger the legal protections afforded to whistleblowers by the WPA and NDAA.

  1. Claims of Fraud Can Invoke the False Claims Act

The WPA and the NDAA are not the only relevant federal laws for whistleblowers in the defense contractor industry. The False Claims Act (31 U.S.C. §§ 3729 et seq.) is a federal law that forbids filing false claims for compensation against the government. It was originally enacted during the Civil War. Still, even then, it was designed to provide the government judicial or administrative proceeding against defense contractors who billed the government for goods or services that they did not provide.

Workers at defense contractors can still use the False Claims Act to continue to enforce the law and protect government funding from fraud perpetrated by dishonest actors in the defense industry.

Even better, the False Claims Act imposes treble damages on fraudulent actors – or three times what was fraudulently obtained from the government – and rewards successful whistleblowers with a share of the verdict or settlement – often between 10 and 30 percent.

Because of this potential for a whistleblower award, many defense contractor whistleblowers choose to file their claim under the False Claims Act rather than the WPA or the NDAA. However, this is not always an option.

  1. All You Need is a Reasonable Belief of Misconduct

Some whistleblowers are concerned that the incriminating information that they have discovered is not enough to build a successful case. However, to proceed with a whistleblower case, all that you need is a reasonable belief that the evidence indicates misconduct – not a foolproof or airtight case.

 

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