Whistleblower Provision

Under the American Recovery and Reinvestment Act of 2009

“ARRA”

2Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Whistleblower Objectives

Review law

Summarize actions and remedies

Suggest best practices

Gary Wheeler, The Virtual HR Director, LLC 3Whistleblower ©

ARRA 2009 Effective February 2009 Economic stimulus package

intended to provide a “jump start” to the U.S. economy in wake of the economic downturn

Worth about $787 billion Includes federal tax cuts,

expansion of unemployment benefits, and other provisions

Gary Wheeler, The Virtual HR Director, LLC 4Whistleblower ©

Whistleblower A whistleblower is a person who alleges

concealed misconduct on the part of an organization or body of people, usually from within that same organization

Gary Wheeler, The Virtual HR Director, LLC 5Whistleblower ©

Whistleblower Examples:

False Claims Act

Big Tobacco Scandal

Enron

6Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

ARRA’s Whistleblower Provision Prohibits any non-federal employer receiving

‘covered funds’ from firing, demoting, or otherwise discriminating against an employee in retaliation for disclosing information

‘Covered funds’ are defined as any contract, grant, or other payment from the federal government or other funds appropriated or made available under ARRA

7Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Protected Disclosures Gross mismanagement of an agency contract or grant relating to covered funds; Gross waste of stimulus funds; Substantial and specific danger to public health or safety

through use of stimulus funds; Abuse of authority in the implementation of stimulus funds;

or Violation of a law, rule, or regulation governing a contract or

grant, awarded or issued relating to the stimulus funds.

Gary Wheeler, The Virtual HR Director, LLC 8Whistleblower ©

Who is Covered?

ARRA’s protections extend to:

Employees who report their suspicions to an official outside the organization

And to those who report their suspicions internally to their employer

9Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Establishing Retaliation

Employee Needs to demonstrate that the protected

disclosure constituted a “contributing factor” in the reprisal against the employee

Can show proof by circumstantial evidence including information regarding the decision-maker’s

knowledge of the disclosure timing of the reprisal relative to the disclosure

10Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Establishing Retaliation

Employer To rebut the allegation of reprisal, employer

must demonstrate with clear and convincing evidence that it would have taken the action constituting the alleged retaliation in the absence of the disclosure

11Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Actions and Remedies Whistleblowers may pursue a civil action in

federal court, with a right to a jury trial Employee may recover uncapped compensatory

damages, as well as costs, attorneys’ fees, and expert witnesses’ fees

Claims may not be waived by agreement, policy, form, or as a condition of employment

Claims are not subject to employment arbitration agreements (with the exception of collective bargaining agreements)

12Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Organizational Impact Increase in Whistleblower activity due to the

following: Expansive list of protected disclosures

Relatively light burden of proof on the whistleblower to establish retaliation

Potential for unlimited monetary damages

13Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Best Practices Post notice of the rights and remedies relating to

ARRA’s whistleblower provision Review and update company’s code of conduct Ensure a complaint procedure is in place Train managers and supervisors on handling

complaints and emphasize no-retaliation

14Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Food for Thought

Will there be an increase in whistleblowing?

In turn, will there be an increase in employer retaliation; therefore, more lawsuits?

15Whistleblower © Gary Wheeler, The Virtual HR Director, LLC

Whistleblower Information For additional information go to:

www.recovery.gov

http://www.thevirtualhrdirector.com gary@thevirtualhrdirector.com