Sen. McCaskill Legislation Expands Whistleblower Protections

Senator introduces bill to make it easier for employees to report waste and fraud in government contracting

October 1, 2009 -- WASHINGTON, D.C. – With the federal government spending $530 billion on contracts in 2008 alone, people who blow the whistle when they see waste or fraud are more important than ever. Yet, most employees of government contractors currently don’t have adequate whistleblower protections to safeguard them from retaliation.

Article continues below...

U.S. Senator Claire McCaskill plans to change that in order to encourage more people to step forward and report fraud, waste and abuse by introducing legislation to extend ground breaking whistleblower protections to all government contractors.

“Whistleblowers are our first line of defense against waste, fraud, and abuse. We’ve got to do everything possible to protect them,” McCaskill said.

Specifically, the Non-Federal Employee Whistleblower Protection Act of 2009 would allow protected disclosures to be made to employers, expand the scope of covered actions, spell out the burden of proof in whistleblower cases and provide a shield against conditions of employment that cancel whistleblower rights.

McCaskill has previously secured whistleblower protections for employees of contractors receiving funding from the Department of Defense and the American Recovery and Reinvestment Act. However, contractors receiving funding from all other government agencies remain poorly protected. She also helped to add a successful provision which grants a right to a jury trial for many federal employee whistleblowers as part of Senator Daniel Akaka’s Whistleblower Protection Enhancement Act of 2009.

McCaskill’s legislation will:

* Provide time limitations for review of claims of retaliation: The legislation provides a clear and time limited process for a report of a reprisal to be investigated by an agency Inspector General (IG) and for the head of an agency to make a subsequent finding on it.

* Give access to jury trials: The bill allows a whistleblower to take his or her case to court and access to a jury trial after the administrative review process is completed.

* Ensure coverage for disclosures made to a whistleblower’s management: The legislation provides that disclosures of fraud, waste and abuse or other wrongdoing can be made to the whistleblower’s employer, as well as to Congress and IGs.

* Protect disclosures of contractors’ violation of law, rule, or regulation: The bill provides protections for disclosures made by a whistleblower where the whistleblower reasonably believes there has been a violation of law, rule or regulation related to an agency contract.

* Cover “abuse of authority” by contract managers: The bill covers a broad range of disclosures including disclosures of “abuse of authority” by contract managers. This definition, importantly, captures cronyism and other abuses that are corrupt but technically may not be illegal, and accounts for other uncertainties of contracting law.

* Establish the burden of proof in whistleblower cases: This provision will bring contractor whistleblower burdens of proof in line with those included in the Whistleblower Protection Act (WPA).

* Give whistleblowers the right to view an IG’s investigative file: In the past, despite spending significant resources and many months to seek justice through a government investigation, whistleblowers have not been able to access the evidence associated with their case. The bill clarifies that both whistleblowers and their employer have a right to view their investigative file.

* Protect employees against conditions of employment that eliminate their whistleblower rights: It is common that employees, as a precondition of hiring, must agree to gag orders that eliminate their whistleblower rights, waive their statutory remedies against retaliation and submit any dispute to company-financed arbitrators, as well as other similar prerequisites that make the whistleblower law irrelevant.

Source: Senator Claire McCaskill