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Congress Passes New Laws That Protect Whistleblowers From Retaliation While Encouraging Them To Report Waste, Fraud And Abuse

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  • Posted on: Dec 21 2016

Perpetrating a fraud on the government is a serious problem. It has economic and life threatening consequences (e.g., increasing costs to taxpayers, and providing defective bullet proof vests to the military). Congress and the states have passed many laws to end fraud on the government. Chief among these is the False Claims Act (“FCA”) and the state analogues.

The FCA imposes liability on persons and companies who defraud the government and protects and rewards whistleblowers who come forward with information that expose the wrongdoing. One of the FCA’s most ardent proponents is Senator Chuck Grassley (R-IA).

Earlier this month, Senator Grassley was at the forefront of legislation passed by the Senate that increases the protections for whistleblowers. These bills, two of which he sponsored and/or co-sponsored, protect whistleblowers who report information to the office of the inspectors general, extend protections to employees of government subcontractors and grantees, and permit FBI employees to report wrongdoing to their direct supervisors.  These bills are discussed below.

Whistleblower Protection for Contractor and Grantee Employees Act:

On December 5, the Senate passed S. 795, legislation sponsored by Senator Claire McCaskill, that gives subgrantees and personal services contractors the same whistleblower protections currently given to contractors, grant recipients, and subcontractors, and prohibits contractors from being reimbursed for legal fees accrued in their defense against retaliation claims by whistleblowers. The bill also would make protections for civilian contractors and grantees permanent – protections that contractors and grantees of the Department of Defense already enjoy.

“We’ve got an enormous contracting workforce in the federal government, and we’ve got to make sure that all of our contractors have the same whistleblower protections as the government employees they work alongside—because these folks are the ones raising the alarm on waste, fraud, and abuse of power,” said Senator McCaskill.

The legislation became law on December 14, 2016.

Inspector General Empowerment Act of 2016:

On December 10, the Senate passed H.R. 6450, the Inspector General Empowerment Act of 2016. Co-sponsored in the Senate by Senator Grassley, the legislation will expand the tools for inspectors general to identify and address fraud, waste and misconduct in government.  The act restores Congress’ intent to guarantee inspectors general access to “all records” of the agencies they oversee, overturning a July 2015 opinion from the Department of Justice’s Office of Legal Counsel that stated otherwise. The House of Representatives passed identical legislation earlier that week.

The Senate version of the bill was introduced by Senator Grassley, who stated the following about the legislation: “If we’ve learned one thing in the last year, it’s that government needs more transparency and oversight, not less.  Inspectors general are our eyes and ears in government.  They are on the front lines in the fight against fraud, waste and misconduct, but they can’t do their job if they can’t access the necessary government documents.  This bill makes sure that they have the tools and access they need to safeguard our tax dollars, improve efficiency, and tackle misconduct.”

“Passage of the IG Empowerment Act enhances the IGs’ ability to fight waste, fraud, abuse and misconduct, protects whistleblowers who share information with IGs, increases government transparency and bolsters the public’s confidence in the independence of IGs,” said Justice Department Inspector General and CIGIE Chair Michael Horowitz. “For these reasons, the act is an important milestone for good government. The inspector general community is grateful to the sponsors and co-sponsors of this act and all those who stood up for independent oversight.”

The legislation is awaiting President Obama’s signature.

Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016:

On December 10, the Senate passed H.R. 5790, the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016. H.R. 5790 was introduced as a companion to S. 2390, the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015, which was introduced in the Senate on December 10, 2015 by Senators Grassley and Leahy.

The 2015 Senate bill attempted to reform the FBI whistleblower protection system by changing the process for investigating and adjudicating claims of retaliation by employees who report fraud, abuse and waste. For example, it would have strengthened the appeals process for whistleblowers by requiring appellate review by the Attorney General and giving employees access to the courts. It would have defined prohibited personnel practices to be consistent with those of other Federal employees, and it would have prohibited the use of nondisclosure agreements unless the employee was fully aware of his/her rights before signing such an agreement. Currently, FBI employees are not protected when they disclose wrongdoing to their supervisors.  Instead, Justice Department regulations require disclosures to be made to a limited group of senior officials even though FBI policy encourages employees to report to supervisors.  Thus, FBI whistleblowers often make their initial disclosure to a supervisor, but have no legal protection in the event of retaliation.

H.R. 5790 represents a modification of the 2015 Senate version. If signed by the President, H.R. 5790 will allow FBI employees to report abuse, fraud, and waste to their direct supervisors, as well as to the Inspector General of the Department of Justice and the Office of Special Counsel; change the process for investigating and adjudicating complaints regarding reprisals against whistleblowers; and require the Department of Justice and the Government Accountability Office to prepare reports related to complaints of whistleblower retaliation and the handling of those cases by the FBI.

“This is a really important provision for the patriotic men and women at the FBI who have gone without the whistleblower protections given to other federal employees for far too long.  The current process is vague, confusing and lacks common sense, and it often puts people in hot water for no legitimate reason,” said Senator Grassley. “The protections in this bill ensure a logical reporting requirement which allows more cases to be heard on the merits instead of being senselessly dismissed because an FBI employee logically reported wrongdoing to their supervisor.”  He also stated that he will pursue the remaining provisions of the Senate version of the act in the next Congress.

On December 15, the bill was presented to President Obama for signature.

Takeaway:

In a statement to Congress on July 8, 2016, Senator Grassley highlighted the integral role of whistleblowers in the fight against fraud on the government. The legislation discussed in this article, which he helped to shepherd through the Senate, signals the government’s continued commitment to support and encourage whistleblowers, whose efforts save taxpayers billions of dollars each year and lead to a more accountable government, to come forward with information that discloses fraud and other wrongdoing on the government.

 

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