Panel backs whistleblower rights for Defense contractors

A Senate panel last week approved a provision that would enhance whistleblower protections for Defense Department contract employees who report potential waste, fraud or abuse.

The Senate Armed Services Committee passed the language as an amendment to the fiscal 2008 Defense authorization bill, during a closed markup session that ended Thursday.

The amendment, offered by Sen. Claire McCaskill, D-Mo., would provide a jury trial in federal court for company employees who are subject to retaliation for exposing possible misconduct in Defense contracts. Contract employees could pursue the trial if they failed to receive an administrative ruling from the Defense secretary within 90 days of bringing a reprisal allegation to an inspector general.

"Jury trials for cases of whistleblower retaliation are a whistleblower's only genuine opportunity for a fair day in court -- with justice decided by the taxpayers the employee is trying to defend," said Tom Devine, legal director for the Government Accountability Project, a Washington-based advocacy group.

According to a statement from McCaskill's office, the amendment is a result of recent oversight hearings that identified loopholes in the law that end up denying federal contract workers the same whistleblower rights as those granted federal employees.

"Employees of private contractors in Iraq have witnessed all kinds of fraud, waste and abuse," McCaskill said in a statement. "They desperately need stronger whistleblower protection so they can help us stop the incredible waste of taxpayer dollars."

The provision would expand the definition of the information that can be revealed by a contract employee, protecting any disclosure that the employee "reasonably believes" is evidence of gross mismanagement, a gross waste of funds or a substantial danger to public health or safety.

The language also would require that employees working on contracts worth more than $5 million be notified of their rights and protections. It would make the Defense Department hold contractors accountable for protecting employees by withholding award payments from companies that retaliate against whistleblowers.

The whistleblower provisions, however, are not included in the House version of the authorization bill, approved May 17. The Senate version, should it clear the floor, would be sent to a House-Senate conference committee to reconcile differences.

But according to Adam Miles, legislative representative for GAP, the House is likely to support the whistleblower provisions in the Senate bill. The House passed similar protections for contract employees in the Whistleblower Protection Enhancement Act (H.R. 985) in March by a 331-94 vote, he noted.

"The McCaskill amendment provides a precedent for Senate support of similar reforms passed already in the House this year -- with a veto-proof majority," Miles said.

The House legislation seeks to reform the 1989 Whistleblower Protection Act, which, since 1994, has been weakened by a series of rulings in the Federal Circuit Court. The bill would restore what many advocacy groups consider Congress' original intent, by protecting federal employees and contractors at all agencies who disclose wrongdoing in the performance of official duties, "without restriction to time, place, form, motive or context."

But the Bush administration has argued that expanding whistleblower protections could increase the number of frivolous complaints and compromise national security. The president has threatened to veto the House bill on the grounds that it would authorize any employee to make a classified disclosure to members of Congress.

Still, Miles argued that because McCaskill's amendment does not authorize contractors to make such disclosures to Congress, it likely would not draw a veto threat from President Bush.

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