Thursday, January 22, 2015

Proposed Rule Allows Contractor Employees to Blow the Whistle on Government Wrong-doing

Contractor employees have had, for some time, whistleblower protections when it comes to blowing the whistle on their Government contractor employer. Those protections do not extend to blowing the whistle on a Government agency or employee - until now.

The U.S. Office of Special Counsel (OSC) is proposing to revise its regulations to expand who may file a whistleblower disclosure with OSC. The revision will allow employees of Federal contractors, subcontractors, and grantees to disclose wrongdoing within the Federal government if they work at or on behalf of a U.S. government component for which OSC has jurisdiction to accept disclosures.

Congress implemented the Whistleblower Protection Act (WPA) in order to encourage Federal employees to report government fraud, waste, and abuse and to provide protections for Federal employees who blow the whistle on government wrongdoing. Federal employees (and former Federal employees) may disclose to OSC information that they reasonably believe shows a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Since the passage of the WPA, the federal workforce has changed significantly because of the Government's increased reliance on contractors. In the modern workforce, employees of contractors, subcontractors, and grantees (collectively “contractors”) often work alongside Federal employees, having similar if not identical duties. Thus contractors are similarly situated to observe or experience the same type of wrongdoing as are Federal employees. According contractors a safe channel to report wrongdoing within the government advances Congress’s purpose in enacting the WPA. Moreover, Congress recently extended protection against retaliation to government contractors who
make whistleblower disclosures, thereby signaling its encouragement of such disclosures. OSC deems such protection against retaliation a precondition to asking insiders to risk their careers to report wrongdoing.

Under the proposed rule, OSC may receive disclosures from current and former contractors who allege retaliation for making a protected disclosure under 41 U.S.C.4712, if they work or worked on behalf of a U.S. government agency in which Federal employees are themselves eligible to file disclosures.

Once a disclosure is received from an eligible contractor, OSC will evaluate the information and make a determination as to whether there is a “substantial likelihood” that it discloses wrongdoing  A contractor working at a Federal facility, alongside Federal employees and under the line supervision of a Federal employee, is virtually in an identical posture to a Federal employee. As such, his/her disclosure will likely carry a comparable degree of reliability as that of a Federal employee. On the other hand, if a contractor’s situation differs greatly from that of a Federal employee, it is less likely that OSC will be able to find that the contractor has credible information about government wrongdoing needed to make a substantial likelihood finding. For example, an off-site contractor, or one not working under Federal line supervision, is much less likely to directly encounter government wrongdoing and, therefore, may not have sufficiently reliable information. For that reason, to meet the “substantial likelihood” threshold, he or she may be required to produce compelling documentary information establishing government wrongdoing.

If OSC determines that a disclosure meets the “substantial likelihood” threshold, the Special Counsel will refer the matter to the relevant agency head, who will be required to conduct an investigation into the disclosure. The identity of a contractor who makes a disclosure to OSC will not be revealed without his or her consent, unless the Special Counsel determines that there is an imminent danger to public health or safety, or an imminent violation of criminal law.

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