After 3 years, little to show for contractors’ new whistleblowing protections

Editor’s note: This story has been updated to include comments from the DoD Inspector General’s office

July 1 will mark exactly three years since stronger whistleblower protections went into place for employees of defense contractors, the most notable change being that subcontractors are now protected against reprisal when they report wrongdoing.

When the new rules took effect in 2013, the Pentagon’s inspector general predicted they’d cause an uptick in reprisal complaints. That’s proved correct, but the number of complaints the IG has substantiated has remained surprisingly low. Specifically, the IG has backed a contract employee’s reprisal claim in  just one case in the past three years.

A periodic summary of DoD’s inspector general submitted to Congress last week combined with similar documents over the last three years shows that the office has handled 370 complaints from contractor whistleblowers who claimed they suffered reprisal since midway through 2013.

Of those claims, the vast majority, 322 (87 percent) were dismissed by the IG for lack of evidence. Another 22 were withdrawn by the whistleblowers themselves, leaving just 26 cases that led to formal IG investigations during that period. The IG wound up closing 25 of those investigations without substantiating the complaints of the people who filed them.

The near-zero substantiation rate is despite a large increase in claims that happened almost immediately after the new protections took effect. In 2012, the IG processed 64 reprisal claims from whistleblowers working for contractors. By 2013, that figure rose to 107 and has stayed above 100 in every year since. The office processed 69 reprisal complaints from contract employees during just the first six months of fiscal 2016.

The results so far appear to fall short of the DoD IG’s own hopes. Its officials had encouraged Congress to strengthen contractor whistleblowing protections as early as 2011, saying that there was little it could do to respond to many of the reprisal claims it received each year because they involved subcontractors, and that previous protections didn’t extend to complaints contract employees made to officials within their own companies.

“It takes a lot for someone to come forward and say, ‘I think my contract is being handled incorrectly,’” Margie Garrison, the deputy inspector general for administrative investigations, said in a June 2013 interview. “They could report, but they didn’t have any protections whatsoever.”

In an emailed statement on Monday, the IG’s office said the low rate of substantiations could be partly explained by the fact that the 2013 updates to whistleblower protections only applied to contracts that were signed after the new laws took effect, so some of the complaints that came in after July 2013 still had to be processed under the older legal standards which did not cover subcontractors or disclosures to a supervisor within an employee’s company.

“DoD OIG recognizes the importance of whistleblowers to government oversight and the critical requirement that they be protected from reprisal,” said Bridget Serchak, a spokeswoman for the office.  “Accordingly, acting inspector general Glenn Fine has directed DoD OIG staff to institute a more expansive approach to evaluating disclosures by contractor employee whistleblowers and actions alleged to have been taken against them in reprisal.”

The lone contractor reprisal case substantiated during the last three years, handled in late 2014, involved a vendor that fired one of its senior accountants in retaliation for calling the DoD IG’s whistleblower hotline, reporting that the vendor was committing fraud by submitting falsified documents to the government and had also retaliated against other employees who reported malfeasance.

The added protections Congress granted to contractor employees as part of the 2013 Defense authorization bill require that clear evidence exists that what they’re reporting amounts to actual waste, fraud or abuse against the government or a threat to public safety. Other gripes having to do with their company’s management or with their ultimate government customers generally don’t count as protected whistleblowing, which might go some way toward explaining why the IG has dismissed so many cases out of hand.

By comparison, the rates at which government employees’ cases are substantiated have ranged between between 10 percent and 20 percent in various categories over the past several years, partially because their whistleblower protections extend to areas of law and policy that go far beyond financial fraud and abuse.

The DoD IG and its counterparts in the military services substantiated 17 cases of whistleblower reprisal on behalf of uniformed personnel and civilian employees in just the first six months of fiscal 2016, including several cases in which higher-ups tried to stop them government employees from whistleblowing.

In one case substantiated by investigators, an Air Force chief master sergeant told enlisted subordinates in an email blast that whatever concerns they had about their workplace, they should never report them to an inspector general: “Address them with your supervisor who will in turn discuss them with me, then me and/or the commander will address your concerns with the IG,” wrote the unidentified leader. The DoD IG asked the Air Force to take “corrective action” against the master sergeant and his command.

In another, an Army colonel sent a junior officer home from a combat tour, assigned him to a lower position and denied him an end-of-tour award because he’d talked with an IG about what the Army captain thought were inadequate measures to protect the safety of the troops in his unit. “Corrective action and remedies are pending,” according to the DoD IG’s summary.

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