As an employer, you have certain obligations under the law not to discriminate against your employees for reasons like race, religion, gender, or age.  This is “human resources 101” – and likely a prominent feature of your policy manual and managerial trainings.

If your business happens to be DoD contracts, you also have another, equally important, non-discrimination obligation.  Unfortunately, this obligation is one that escapes the attention of some human resources officials and in-house legal departments until it is too late.

DoD Contractors are not immune to WhistleBlower Reprisal Law

The obligation I’m referring to is a legal prohibition on reprisal against any employee or subcontractor who reports to any one of a number of authorities information that s/he reasonably believes to evidence: gross mismanagement; a gross waste of public funds; an abuse of authority; violation of any law/rule/regulation related to a DoD contract (including the competition for or negotiation of a contract) or grant; or a substantial and specific danger to public health or safety.

The pertinent law can be found at 10 U.S.C. § 2409.  In my experience, most DoD contractors are aware generally of whistleblower reprisal law as applied to government agencies and/or government employees; but many operate under the erroneous belief that they are somehow immune to its application as private entities.  That’s simply not the case.

Examples of Whistleblowing Retaliation

If you need any convincing, just ask either of the two DoD contractors who were found guilty of retaliating against a whistleblower-employee in 2019 alone.  In one case, the DoD Inspector General’s Office – the entity charged with investigation and enforcement of this law – found that a DoD contractor had attempted to reassign, then later discharged, an employee for making protected disclosures to various individuals with oversight responsibility for a contract between the complainant’s employer and the Army.

In the other case, OIG found that a DoD contractor had placed an employee on unpaid administrative leave in reprisal for reporting violations of state law and abuse of authority to various Inspectors General and contracting officer representatives.

Both cases resulted in an embarrassing, permanent, and public record of OIG’s findings, and an order that the contractor-employer be liable for financial damages.  Those damages, which can include attorney fees, add up quickly.  Not to mention that a substantiated reprisal finding can’t be helpful in securing new DoD contracts.

Be a Prudent DoD Contractor

All of this is to say that while it may be tempting to silence an employee or subcontractor raising concerns about the employer’s operations, the prudent DoD contractor resists that urge.  The concerns being raised by a whistleblower can often be ameliorated at comparatively limited cost to a substantiated reprisal finding.  And if they can’t, the employer should take a hard look at how they are conducting business at the risk of facing something far more serious than a reprisal case: criminal charges for contract fraud, bid rigging, tax evasion, labor law violations, or any other number of other criminal statutes that can be implicated when doing business with the government.

Depending upon how you as the employer choose to look at it, the early intervention of a whistleblower may actually be a blessing in disguise.  I strongly advise all DoD contractors to carefully study their obligations under federal whistleblower reprisal law and to train their managers at all levels on it.

 

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com