Tuesday, November 26, 2019

Contractor Retaliates Against Whistleblower

The Justice Department Office of Inspector General (OIG) investigated a complaint by a former employee of a contractor for the Federal Bureau of Prisons (BOP) that he suffered reprisal from the employer/contractor for making a protected disclosure under Federal whistleblower statutes.

Contractor employees, just like Government employees are protected against reprisal for making protected disclosures specified under 41 USC 4712(a). These protected disclosures include 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 the public health or safety, or
  • a violation of law, rule, or regulation related to a Federal contract or grant.
The (former) contractor employee alleged that he was harassed, subjected to retaliation, and ultimately terminated  for reporting to the BOP certain violations that he believed were not being adequately addressed by the contractor. The Justice Department press release announcing this investigation did not provide the contractor name or the alleged impropriety.

The OIG determined that the former contractor employee did indeed make a protected disclosure and that the protected disclosure was a contributing factor in the subsequent imposition of a six-month probationary period and ultimate termination. The OIG did not find clear and convincing evidence that the contractor would have either imposed the probationary period on the employee or terminated the employee in the absence of the protected disclosure. Accordingly, the OIG concluded that the employee suffered reprisal at the hands of his employer, the Government contractor.

It is now up to the Bureau of Prisons (BOP) to resolve the matter. BOP could disagree with the OIG findings which as a practical matter, won't happen. Possible remedies include any or all of the following:
  1. Order the contractor to take affirmative action to abate the reprisal
  2. Order the contractor to reinstate the person to the position that the person held before the reprisal, together with compensatory damages *including back pay), employment benefits etc.
  3. Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorney's fees) that were incurred in connection with bringing the complaint.
Although details are sketchy, it sounds like the contractor engaged in disparate treatment with this whistleblower - the six-month probationary period was not something the contractor exacted on any other employee.

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