Pilot Program for Enhanced Whistleblower Protections

The FAR Councils just issued an interim rule announcing the implementation of a pilot program that is designed to enhance whistleblower protections for contractor employees. This pilot program which is effective now, effectively takes action away from the contractor and gives it to the Government. The law puts the remedies in the hands of the head of the agency and provides time lines for action.

If a contractor or subcontractor employee believes that he or she has been discharged, demoted, or otherwise discriminated against, he/she may submit a complain with the Inspector General of the agency concerned. Procedures for submitting a complaint are readily available of IG websites. The employee has three years in which to register the complaint.

Once received, the IG performs an investigation and makes a recommendation. The agency head must decide whether the IG report provides sufficient basis to conclude that the contractor (or subcontractor) employee has been subjected to reprisal. If sufficient evidence does exist, the agency head must either issue a written order denying relief or order the contractor to take one or more of the following actions:

1. Take affirmative action to abate the reprisal
2. Reinstate the complainant-employee to the position that the person held before the reprisal, toegther with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken
3. Pay the complainant-employee an amount equal to the aggregate amount of all costs and expenses (including attorney's fees and expert witnesses' fees) that were reasonably incurred for, or in connection with bringing the compliant regarding the reprisal. 

The law also provides that the complainants, after they are deemed to have exhausted all administrative remedies, may bring an action at law or equity against the contractor.

This pilot program almost seems like an alternative disputes resolution process where administrative processes in lieu of going to court will save everyone a lot of time and money.

If a contractor fails to comply with the agency head's order, the agency head must file an action for enforcement of the order in the U.S. District court. In any action, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. Most contractors will not want that to happen unless the order is grossly wrong or unfair.