Advocates of whistleblower rights achieved a victory in December when then-President Obama signed whistleblower protections permanently into law for employees of companies working on civilian federal contracts (Defense Department contractor employees were already covered by a permanent program). Previously the protections were part of a four-year pilot program that began in 2013. While making these legal protections permanent was an important step forward in contractor and government accountability, the track record for employees filing complaints over the pilot program’s first few years hasn’t been encouraging, according to a new report released by the Government Accountability Office (GAO) last week. The GAO report indicates that IGs and agencies have not always implemented all of the pilot program’s requirements.
The GAO report states that 127 whistleblower retaliation complaints were submitted by contractor employees during the first two and a half years of the program. Of those, 44 were investigated by the involved agency’s Office of Inspector General (OIG). According to the GAO, “the complaints not investigated by the OIGs were excluded for a variety of reasons, such as the complaint was deemed to be frivolous or was being decided by another judicial authority.” Of the 44 where OIGs started investigations, 17 were ongoing when GAO finished gathering data for its report in mid-2016. None of the 27 completed investigations at the time resulted in findings that substantiated whistleblower reprisal against the employee.
While that sample size is relatively small and every case has to be individually reviewed on its merits, it is concerning that in the first two and a half years of the law, not a single claim of retaliation was substantiated. While it is clearly possible that there was in fact no retaliation in any of these cases, there are a number of other reasons that may also contribute to the lack of any substantiated complaints.
For example, when reviewing another whistleblower protection law, the Project On Government Oversight observed at the Defense Department OIG an overly narrow legal interpretation of protections regarding defense contractor employees. As we did in that case and in other areas of federal whistleblower law, we will advocate for expansive interpretation of protections and for legislation to fill gaps in the law as needed.
The GAO also found inconsistent implementation of some portions of the law, which could impact the final outcome of complaints and whether or not complaints are filed. The program was poorly communicated to contractors and the guidance within IGs was often vague. For example, the GAO found that agencies issued contracts without the legally required clause mandating that the contractor communicate to their employees the rights granted them under the program. Even when it was included, government contracting officers did not regularly follow up or verify that its requirements had been satisfied. As a result, “contractor employees may be unaware of the protections they have against reprisal, which may ultimately impact their willingness to come forward when witnessing fraud, waste, abuse, and mismanagement,” GAO wrote.
Additionally, once an investigation is completed, IGs are required to send them to the agency head and the involved parties. Those involved are given the opportunity to submit to the agency head a written response to the report, and the agency head makes the final determination (within 30 days) of whether or not retaliation took place—and thus, whether relief will be granted to the complainant. This process forces agency heads to take responsibility for responding to retaliation when substantiated by the IG, and allows for involved parties to respond to potential shortcomings in the investigation if the IG did not substantiate the retaliation. Even when an OIG does not find that reprisal occurred, the agency head must, by law, make a final determination—a step that did not properly occur in most of the cases.
Of the 27 investigations that were completed, one IG, responsible for 15 of them, reported that it had not sent any to the agency head for final determination. Of the remaining 12, all IGs said they referred their findings to the agency heads, but it is unclear how often the agency head made a final ruling. For example, the State Department OIG forwarded investigative results to the Secretary, but did not require a decision to be made. In another example, the Department of Homeland Security “reported that in one case a report was sent to the Office of General Counsel Labor and Employment division, not the agency head, and in the other case, the report was forwarded to the Secretary’s office, but nothing was done with the report.” It appears that most of the time, whistleblowers have been consistently denied their legal right to respond to the investigative report.
The now-permanent protections provided to contractors and subcontractors is a big win for whistleblowers. We hope agencies and IGs take these GAO findings to heart and make sure that people who stand up to report waste, fraud, or abuse are given all the protections provided for in the law.