Overview
This section establishes protections for employees of non-Federal employers (contractors and subcontractors) who disclose evidence of gross mismanagement, waste, or illegal activity related to funds provided by the American Recovery and Reinvestment Act of 2009 (the Recovery Act). It prohibits any form of reprisal for such disclosures and provides a formal mechanism for investigation by the Inspector General and enforcement by agency heads.
Key Rules
- Prohibited Conduct: Non-Federal employers are strictly prohibited from discharging, demoting, or discriminating against employees for reporting "covered information" to authorized entities such as the Recovery Accountability and Transparency Board, Inspectors General, or Congress.
- Definition of Covered Information: Includes reasonable belief of gross mismanagement, gross waste of funds, substantial dangers to public health or safety, abuse of authority, or violations of laws and regulations related to Recovery Act-funded contracts.
- Filing and Investigation: Complaints are filed with the relevant agency’s Inspector General (IG), who has the authority to investigate and provide the parties access to the investigative file under the Privacy Act.
- Burden of Proof: A reprisal is established if the employee demonstrates the disclosure was a "contributing factor" in the personnel action (which can be proven via circumstantial evidence). To rebut this, the employer must demonstrate by "clear and convincing evidence" that it would have taken the same action regardless of the disclosure.
- Remedies: Agency heads can order employers to abate the reprisal, reinstate the employee with back pay and compensatory damages, and pay the complainant’s legal and expert witness fees.
- Right to Sue: If the agency head does not grant relief or act within 210 days of the complaint, the employee may bring a de novo civil action in U.S. District Court.
Practical Implications
- Mandatory Clause: Contracting officers must include FAR clause 52.203-15 in every solicitation and contract funded in whole or in part by the Recovery Act, extending these protections down to the subcontractor level.
- High Compliance Threshold: Contractors face a difficult legal standard ("clear and convincing evidence") to defend against reprisal claims, necessitating meticulous documentation of all personnel actions involving employees who have access to Recovery Act funding data.