Sen. Claire McCaskill (D-MO) has introduced legislation that would expand whistleblower protections to non-federal employees who disclose information about the misuse of federal funds. The Non-Federal Employee Whistleblower Protection Act of 2009 (S. 1745) would shield employees of companies that receive funding from any government agency (in the form of either grants or contracts) from retaliation for making protected disclosures involving waste or fraud. The bill also expands the scope of covered actions, outlines the burden of proof in whistleblower cases, and prevents employers from forcing employees to waive their whistleblower rights.

Specifically, according to a press release issued by McCaskill’s office, this bill would do the following:

• 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 provides 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 the 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.

What is notable about this bill is that unlike other legislation that applies to contractors, the definition of “covered funds” applies to the recipients of contract funds and grant monies. The bill defines “covered funds” as “any contract, grant, or other payment received by any non-Federal employer if the Federal Government provides any portion of the money or property that is provided, requested, or demanded.” This expansive definition would therefore subject a wide variety of entities – including hospitals that receive federal assistance in the form of Medicare/Medicaid, and universities that accept federal grant money – to the provisions of this bill.

The Non-Federal Employee Whistleblower Protection Act of 2009 has been referred to the Senate Committee on Homeland Security and Governmental Affairs.

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