In the Defense Department, complaints of whistleblower reprisal are difficult to prove, especially when the victims are contractor employees. In the seven years since Congress strengthened contractors’ rights to lodge complaints about retaliation, investigators have only managed to substantiate four cases.
But the department’s inspector general is taking a new approach to reprisal complaints, encouraging complainants to take their cases to a neutral arbiter inside the IG’s office instead of waiting for a formal investigation.
And so far, the alternative dispute resolution (ADR) process has produced a massive increase in the number of alleged reprisal victims who’ve been able to get some relief: 82 cases have been resolved through ADR since the program’s launch in late 2017, including 36 in the latest six-month reporting period. A large majority of those cases came from contractor employees, the population the OIG chose to start the program with.
Nilgun Tolek, the DoD IG’s director for whistleblower retaliation, said the decision to begin the new ADR program with contractor reprisal complaints was based on a prediction that private-sector employees and firms would readily embrace it.
So far, they have.
“Companies have been dealing with some version of ADR in all kinds of their processes for years, and so they’re familiar with the concept and understand the advantages of it and are more willing to say yes to the process then maybe others are,” she said in an interview for Federal News Network’s On DoD. “With ADR, the possibility that a complainant can get some kind of relief and get it much more quickly than through the investigative process has just been proven.”
Providing relief but no guarantee of action
To establish its program, the DoD IG borrowed heavily from an existing, similar one operated by the government’s Office of Special Counsel. Both the employer and the complainant have to agree to the process, but the sorts of relief victims can get are generally the same as what they might be offered if a formal investigation substantiated their complaints. So far, they’ve ranged from lump sum payments and compensatory damages to changes in working conditions and expunging of negative marks on employment records.
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And from the OIG’s perspective, the benefits of the ADR process aren’t limited to the fact that it’s faster than the more traditional and formal investigative one.
That’s because even if the IG’s investigation comes down on the side of the whistleblower, all the office can do is recommend that the DoD component involved take action to remedy the situation. And there’s no guarantee that will happen.
“Even when we substantiate a complaint under the contractor statute, what happens is we send the results to the secretary concerned, and it’s up to them whether they do anything to offer a remedy or take corrective action against the company that retaliated,” Tolek said. “There’s been a case that’s out in the news for quite a while now that we substantiated against the Leidos company, and the department has not taken any action because it doesn’t believe that we reached the right conclusion. So when you compare the possibility that even with a substantiated complaint, no corrective or remedial action might be taken versus a mutually agreed-upon resolution that that is good for both parties, it’s kind of hands down that ADR wins.”
Although the DoD program began with contractor employees, the OIG has started to expanded it to other groups: 24 whistleblowing Defense employees paid through non-appropriated funds have had their cases resolved through ADR so far, as have two Defense intelligence employees. And under a pilot program begun a few months ago, the office is starting to offer the option to uniformed whistleblowers.
But the program isn’t appropriate for all cases. Since all of the proceedings are confidential, it’s not well-suited for cases that might raise broader violations of criminal law or policy that go beyond retaliation.
“They can’t be shared with anyone else besides the ADR attorney, so if something arose during that process, there would have to be a kind of stepping back from the ADR and resuming under our normal investigative authority,” Tolek said. “The ADR attorney on our side has to keep a lookout for those kinds of red flags, like significant questions of government policy that arise in the context of the complaint, or things that could create precedential value by investigating and having a finding. And if those things are evident from the get-go in our review of the incoming complaint, then that can be a reason not to offer ADR. And if there are criminal proceedings ongoing, we couldn’t touch it [with ADR] at that point.”