To expand whistleblower protections to non-Federal employees
whose disclosures involve misuse of Federal funds.
IN THE SENATE OF THE UNITED STATES
January 31, 2011
Mrs. MCCASKILL (for herself and Mr. WEBB) introduced the following
bill; which was read twice and referred to the Committee on Homeland
Security and Governmental Affairs
To expand whistleblower protections to non-Federal employees
whose disclosures involve misuse of Federal funds.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Non-Federal Employee Whistleblower Protection
Act of 2011'.
SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.
(a) Repeal- Section 4705 of title 41, United States Code, is hereby
(b) Enhanced Protection for State and Local Government and Contractor
Whistleblowers- Chapter 47 of division C of title 41, United States
Code, is amended by inserting after section 4704 the following new section:
`Sec. 4705. Whistleblower protection for State and local government
and contractor whistleblowers
`(a) Prohibition of Reprisals- An employee of any non-Federal employer
receiving covered funds may not be discharged, demoted, or otherwise
discriminated against as a reprisal for initiating or participating
in any proceeding related to the misuse of any Federal funds, reasonably
opposing the misuse of any Federal funds, or disclosing, including a
disclosure made in the ordinary course of an employee's duties, to an
inspector general, the Comptroller General of the United States, the
Attorney General, a member of Congress, a State or Federal regulatory
or law enforcement agency, a person with supervisory authority over
the employee (or such other person working for the employer who has
the authority to investigate, discover, or terminate misconduct), a
court or grand jury, the head of a Federal agency, or their representatives
information that the employee reasonably believes is evidence of--
`(1) gross mismanagement of an agency contract or grant relating to
`(2) a gross waste of covered funds;
`(3) a substantial and specific danger to public health or safety
related to the implementation or use of covered funds;
`(4) an abuse of authority related to the implementation or use of
covered funds; or
`(5) a violation of law, rule, or regulation related to an agency
contract (including the competition for or negotiation of a contract),
subcontract, or grant, awarded or issued relating to covered funds.
`(b) Investigation of Complaints-
`(1) IN GENERAL- A person who believes that the person has been subjected
to a reprisal prohibited by subsection (a) may submit a complaint
regarding the reprisal to the appropriate inspector general. Except
as provided under paragraph (3), unless the inspector general determines
that the complaint is frivolous, does not relate to covered funds,
or another Federal or State judicial or administrative proceeding
has previously been invoked to resolve such complaint, the inspector
general shall investigate the complaint and, upon completion of such
investigation, submit a report of the findings of the investigation
to the person, the person's employer, and the head of the appropriate
`(2) TIME LIMITATIONS FOR ACTIONS-
`(A) IN GENERAL- Except as provided under subparagraph (B), the
inspector general shall, not later than 180 days after receiving
a complaint under paragraph (1)--
`(i) make a determination that the complaint is frivolous, does
not relate to covered funds, or another Federal or State judicial
or administrative proceeding has previously been invoked to resolve
such complaint; or
`(ii) submit a report under paragraph (1).
`(i) VOLUNTARY EXTENSION AGREED TO BETWEEN INSPECTOR GENERAL AND
COMPLAINANT- If the inspector general is unable to complete an
investigation under this section in time to submit a report within
the 180-day period specified under subparagraph (A) and the person
submitting the complaint agrees to an extension of time, the inspector
general shall submit a report under paragraph (1) within such
additional period of time as shall be agreed upon between the
inspector general and the person submitting the complaint.
`(ii) EXTENSION GRANTED BY INSPECTOR GENERAL- If the inspector
general is unable to complete an investigation under this section
in time to submit a report within the 180-day period specified
under subparagraph (A), the inspector general may extend the period
for not more than 180 days without agreeing with the person submitting
the complaint to such extension, provided that the inspector general
provides a written explanation (subject to the authority to exclude
information under paragraph (4)(C)) for the decision, which shall
be provided to both the person submitting the complaint and the
`(iii) SEMI-ANNUAL REPORT ON EXTENSIONS- The inspector general
shall include in semi-annual reports to Congress a list of those
investigations for which the inspector general received an extension.
`(3) DISCRETION NOT TO INVESTIGATE COMPLAINTS-
`(A) IN GENERAL- The inspector general may decide not to conduct
or continue an investigation under this section upon providing to
the person submitting the complaint and the non-Federal employer
a written explanation (subject to the authority to exclude information
under paragraph (4)(C)) for such decision.
`(B) ASSUMPTION OF RIGHTS TO CIVIL REMEDY- Upon receipt of an explanation
of a decision not to conduct or continue an investigation under
subparagraph (A), the person submitting a complaint shall immediately
assume the right to a civil remedy under subsection (c)(3) as if
the 210-day period specified under such subsection has already passed.
`(C) SEMI-ANNUAL REPORT- The inspector general shall include in
semi-annual reports to Congress a list of those investigations the
inspector general decided not to conduct or continue under this
`(4) ACCESS TO INVESTIGATIVE FILE OF INSPECTOR GENERAL-
`(A) IN GENERAL- The person alleging a reprisal under this section
shall have access to the investigation file of the appropriate inspector
general in accordance with section 552a of title 5 (commonly referred
to as the `Privacy Act'). The investigation of the inspector general
shall be deemed closed for purposes of disclosure under such section
when an employee files an appeal to an agency head or a court of
`(B) CIVIL ACTION- In the event the person alleging the reprisal
brings suit under subsection (c)(3), the person alleging the reprisal
and the non-Federal employer shall have access to the investigative
file of the inspector general in accordance with the Privacy Act.
`(i) IN GENERAL- The inspector general may exclude from disclosure--
`(I) information protected from disclosure by a provision of
`(II) any additional information the inspector general determines
disclosure of which would impede a continuing investigation,
provided that such information is disclosed once such disclosure
would no longer impede such investigation, unless the inspector
general determines that disclosure of law enforcement techniques,
procedures, or information could reasonably be expected to risk
circumvention of the law or disclose the identity of a confidential
`(ii) LIMITATION- Notwithstanding clause (i)(II), the inspector
general may not withhold information from the employee which would
otherwise be subject to disclosure under section 552 of title
5 (commonly referred to as the Freedom of Information Act) or
the Privacy Act.
`(5) PRIVACY OF INFORMATION- An inspector general investigating an
alleged reprisal under this section may not respond to any inquiry
or disclose any information from or about any person alleging such
reprisal, except in accordance with the provisions of section 552a
of title 5 or as required by any other applicable Federal law.
`(c) Remedy and Enforcement Authority-
`(A) DISCLOSURE AS CONTRIBUTING FACTOR IN REPRISAL-
`(i) IN GENERAL- A person alleging a reprisal under this section
shall be deemed to have affirmatively established the occurrence
of the reprisal if the person demonstrates that a disclosure described
in subsection (a) was a contributing factor in the reprisal.
`(ii) USE OF CIRCUMSTANTIAL EVIDENCE- A disclosure may be demonstrated
as a contributing factor in a reprisal for purposes of this paragraph
by circumstantial evidence, including--
`(I) evidence that the official undertaking the reprisal knew
of the disclosure;
`(II) evidence that the reprisal occurred within a period of
time after the disclosure such that a reasonable person could
conclude that the disclosure was a contributing factor in the
`(III) evidence that the protected disclosure was well founded
in fact or law.
`(B) OPPORTUNITY FOR REBUTTAL- The head of an agency may not find
the occurrence of a reprisal with respect to a reprisal that is
affirmatively established under subparagraph (A) if the non-Federal
employer demonstrates by clear and convincing evidence that the
non-Federal employer would have taken the action constituting the
reprisal in the absence of the disclosure. An employee may rebut
this affirmative defense by direct or circumstantial evidence, including
the evidence described in subparagraph (A).
`(2) AGENCY ACTION- Not later than 30 days after receiving an inspector
general report under subsection (b), the head of the agency concerned
shall determine whether there is sufficient basis to conclude that
the non-Federal employer has subjected the complainant to a reprisal
prohibited by subsection (a) and shall either issue an order denying
relief in whole or in part or shall take 1 or more of the following
`(A) Order the employer to take affirmative action to abate the
`(B) Order the employer to reinstate the person to the position
that the person held before the reprisal, together with the compensation
(including back pay), compensatory damages, employment benefits,
and other terms and conditions of employment that would apply to
the person in that position if the reprisal had not been taken.
`(C) Order the employer to pay the complainant an amount equal to
the aggregate amount of all costs and expenses (including attorneys'
fees and expert witnesses' fees) that were reasonably incurred by
the complainant for, or in connection with, bringing the complaint
regarding the reprisal, as determined by the head of the agency
or a court of competent jurisdiction.
`(D) Where appropriate, order the posting of the decision of the
inspector general in a manner in which every employee of the employer
will have notice of the decision and otherwise require a reasonable
compliance program to ensure that no further retaliation is committed
by the employer.
`(E) In the case of a finding that the reprisal was willful, wanton,
or malicious, pay the employee no more then 10 times the amount
of all lost wages and other compensatory damages.
`(3) CIVIL ACTION- If the head of an agency issues an order denying
relief in whole or in part under paragraph (1), has not issued an
order within 210 days after the submission of a complaint under subsection
(b), or in the case of an extension of time under subsection (b)(2)(B)(i),
within 30 days after the expiration of the extension of time, or decides
under subsection (b)(3) not to investigate or to discontinue an investigation,
and there is no showing that such delay or decision is due to the
bad faith of the complainant, the complainant shall be deemed to have
exhausted all administrative remedies with respect to the complaint,
and the complainant may bring a de novo action at law or equity against
the employer to seek compensatory damages and all other relief available
under this section in the appropriate district court of the United
States, which shall have jurisdiction over such an action without
regard to the amount in controversy. Such an action shall, at the
request of either party to the action, be tried by the court with
`(4) JUDICIAL ENFORCEMENT OF ORDER- Whenever a person fails to comply
with an order issued under paragraph (2), the head of the agency shall
file an action for enforcement of such order in the United States
district court for a district in which the reprisal was found to have
occurred. In any action brought under this paragraph, the court may
grant appropriate relief, including injunctive relief, compensatory
and exemplary damages, and attorneys' fees and costs. The person upon
whose behalf an order was issued may also file such an action or join
in an action filed by the head of the agency.
`(5) JUDICIAL REVIEW- Any person adversely affected or aggrieved by
an order issued under paragraph (2) may obtain review of the order's
conformance with this subsection, and any regulations issued to carry
out this section, in the United States court of appeals for a circuit
in which the reprisal is alleged in the order to have occurred. No
petition seeking such review may be filed more than 60 days after
issuance of the order by the head of the agency. Review shall conform
to chapter 7 of title 5. Filing such an appeal shall not act to stay
the enforcement of the order of a head of an agency or the judgment
of a district court.
`(6) EXHAUSTION OF ADMINISTRATIVE REMEDIES- Regardless of any other
time limit set forth in this section, after 360 days an employee shall
be deemed to have exhausted his or her administrative remedies and
may file a civil action or amend a claim under this section to any
other pending civil action filed by the employee.
`(d) Nonenforceability of Certain Provisions Waiving Rights and Remedies
or Requiring Arbitration of Disputes-
`(1) WAIVER OF RIGHTS AND REMEDIES- Except as provided under paragraph
(3), the rights and remedies provided for in this section may not
be waived by any agreement, policy, form, or condition of employment,
including by any predispute arbitration agreement.
`(2) PREDISPUTE ARBITRATION AGREEMENTS- Except as provided under paragraph
(3), no predispute arbitration agreement shall be valid or enforceable
if it requires arbitration of a dispute arising under this section.
`(3) EXCEPTION FOR COLLECTIVE BARGAINING AGREEMENTS- Notwithstanding
paragraphs (1) and (2), an arbitration provision in a collective bargaining
agreement shall be enforceable as to disputes arising under the collective
`(e) Requirement To Post Notice of Rights and Remedies- Any employer
receiving covered funds shall post notice of the rights and remedies
provided under this section.
`(f) Rules of Construction-
`(1) NO IMPLIED AUTHORITY TO RETALIATE FOR NON-PROTECTED DISCLOSURES-
Nothing in this section may be construed to authorize the discharge
of, demotion of, or discrimination against an employee for a disclosure
other than a disclosure protected by subsection (a) or to modify or
derogate from a right or remedy otherwise available to the employee.
`(2) RELATIONSHIP TO STATE LAWS- Nothing in this section may be construed
to preempt, preclude, or limit the protections provided for public
or private employees under State whistleblower laws.
`(g) Definitions- In this section:
`(1) ABUSE OF AUTHORITY- The term `abuse of authority' means an arbitrary
and capricious exercise of authority by a contracting official or
employee that adversely affects the rights of any person, or that
results in personal gain or advantage to the official or employee
or to preferred other persons.
`(2) COVERED FUNDS- The term `covered funds' means any contract, grant,
or other payment received by any non-Federal employer if the Federal
Government provides any portion of the money or property that is provided,
requested, or demanded.
`(3) EMPLOYEE- The term `employee'--
`(A) except as provided under subparagraph (B), means an individual
performing services on behalf of an employer or a contractor, subcontractor,
or agent of an employer; and
`(B) does not include any Federal employee or member of the uniformed
services (as that term is defined in section 101(a)(5) of title
`(4) NON-FEDERAL EMPLOYER- The term `non-Federal employer'--
`(I) with respect to covered funds--
`(aa) the contractor, subcontractor, grantee, or recipient,
as the case may be, if the contractor, grantee, or recipient is an employer;
`(bb) any professional membership organization, certification
or other professional body, any agent or licensee of the Federal government,
or any person acting directly or indirectly in the interest of an employer
receiving covered funds; or
`(II) with respect to covered funds received by a State or local
government, the State or local government receiving the funds
and any contractor or subcontractor of the State or local government;
`(ii) any corporation or person who receives any Federal funds;
`(B) does not mean any department, agency, or other entity of the
`(5) STATE OR LOCAL GOVERNMENT- The term `State or local government'
`(A) the government of each of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa,
the Virgin Islands, the Commonwealth of the Northern Mariana Islands,
or any other territory or possession of the United States; or
`(B) the government of any political subdivision of a government
listed in subparagraph (A).'.
(1) PENDING CLAIMS- Section 4705 of title 41, United States Code,
as added by subsection (b), shall apply to complaints submitted pursuant
to such section on or after the date of the enactment of this Act.
(2) NEW CLAIMS- Section 4705 of title 41, United States Code, as in
effect on the day before the date of the enactment of this Act shall
apply to claims submitted pursuant to such section before such date