When you start a new job, you probably feel a sense of excitement: you’re taking on new challenges, learning new things, and being welcomed as a valued member of the team. Over time, however, that feeling may change — particularly as you discover more about your new employer. Perhaps things aren’t quite as promised, and you begin to be disillusioned about your work.
In some situations, your unhappiness may be about more than just an overbearing boss or an overwhelming workload. Your boss may be violating the law, and when you learn about it, you find yourself in a terrible position. Do you inform authorities about this violation, and risk losing your job, or stay silent and let the abuses continue?
Whistleblowers are often the only people who can protect innocent parties from being harmed by greedy corporations. Without whistleblowers, companies may continue to break the law due to lax government oversight. In this way, whistleblowers may be the last line of defense to enforce certain laws.
This is particularly true when it comes to labor laws. It may be impossible for government regulators to know if a company is failing to pay employees overtime in accordance with federal law, for example. Only someone close to the situation would know that this is happening — and it may require blowing the whistle for the law to be enforced.
In the District of Columbia, individuals who work for D.C. government agencies and contractors are protected from retaliation for being a whistleblower or for refusing to obey an illegal order. The primary law that protects whistleblowers is the D.C. Whistleblower Protection Act. A second law, the D.C. False Claims Act, has a provision that prohibits retaliation against employees engaged in certain activities.
If you work for the D.C. government or a contractor of a D.C. government agency, it is critical to understand the protections available to you as a whistleblower. These laws may embolden you to speak out against illegal and fraudulent conduct — and protect you from retaliation when you do take a stand.
What Is the Whistleblower Protection Act (WPA)?
The D.C. Whistleblower Protection Act (WPA) protects employees of D.C. government agencies or contractors who engage in certain activities at work. Under the WPA, a company, supervisor or manager is prohibited from either retaliating or threatening to retaliate against an employee because they (1) refused to comply with an illegal order or (2) made a protected disclosure.
For employees who work for the D.C. government (or a contractor), making a protected disclosure has a specific definition. It involves disclosing any information that is not specifically prohibited by statute to a supervisor or public body, if the employee reasonably believes that the information is evidence of:
- Gross mismanagement;
- Gross misuse or waste of public resources or funds;
- Abuse of authority in connection with the administration of a public program or the execution of a public contract;
- A violation of any federal, state, or local law, rule or regulation;
- A violation of any significant contractual terms between the D.C. government and a government contractor; or
- A substantial and specific danger to the public health, safety, or protection of the environment.
In other words, if an employee acts as a whistleblower by telling a supervisor or a public body about some type of wrongdoing, then it may be considered a protected disclosure under the WPA. If the employee faces retaliation as a result of their protected disclosure, then they may file a claim under the WPA.
One example of a protected disclosure is reporting an employer to the U.S. Department of Labor for misclassifying workers as independent contractors instead of employees (which denies them minimum wage, overtime, and many other protections). If you work for a D.C. government contractor, and “blow the whistle” on this violation of federal law, you will be protected by the WPA.
Under the WPA, employees have specific rights and obligations. Both employees and supervisors are required to disclose illegal activity as soon as they become aware of it. If a supervisor does not do so, then they will face disciplinary action. In addition, if a supervisor retaliates against an employee for engaging in protected conduct under the WPA, then the D.C. agency must take disciplinary action against them.
How Can a Whistleblower Recover Under the WPA?
The D.C. WPA protects employees from retaliation for making protected disclosures or refusing to comply with an illegal order. Retaliation can take many forms, from being demoted to having shifts changed to being terminated. If an employer violates the WPA, then an employee has a year from the date of the retaliation to bring a claim in D.C. Superior Court.
To successfully establish a claim under the WPA, an employee (plaintiff) must demonstrate by a preponderance of the evidence that their refusal to comply with an illegal order or protected disclosure was a contributing factor in their employer’s decision to take a prohibited personnel action (such as firing, demotion, etc). Preponderance of the evidence is a legal standard; it requires a showing that the plaintiff’s claim is more likely to be true than not.
If the plaintiff/employee can meet this standard, then the burden shifts to the employer/defendant. The defendant must prove by clear and convincing evidence — a higher level of proof than preponderance of the evidence — that it would have taken the personnel action if the plaintiff had not engaged in protected conduct.
Consider the case of the employee who reported their D.C. government contractor to the Department of Labor for violations of federal labor law (described above). If the employer learned about the report, and decided to unilaterally change the employee’s long-standing 9 a.m. to 5 p.m. shift to a less-desirable 5 p.m. to 1 a.m. shift, that would likely be considered retaliation.
If the employee can prove that it is more likely than not that the government contractor did this because of the report, then the employer would have to demonstrate that it would have changed the employer’s shift even if they didn’t make the report. Without a legitimate business reason to make that schedule change, the employer may not be able to demonstrate this by clear and convincing evidence — and the employee may be able to recover an award.
An employee is successful in their WPA claim, they are entitled to relief. A court may order an injunction (ordering an employer to do or not do something), reinstatement, restoration of lost benefits, back pay for lost wages, compensatory damages, and litigation costs (including attorney’s fees).
Importantly, the DC WPA is distinct from the federal Whistleblower Protection Act. While the two laws offer similar protections for employees, the DC WPA only protects employees of D.C. government agencies and contractors. In contrast, the federal Whistleblower Protection Act is only available for federal government employees. The process of filing a claim under federal law is distinct, and involves multiple steps.
What Is the D.C. False Claims Act (DC FCA)?
The D.C. False Claims Act (DC FCA) prohibits fraud in Washington, D.C. government contracts or programs. While the law is broadly designed to address fraud, it contains a specific provision that protects whistleblowers who engage in protected conduct (such as informing others about fraud in government contracts or programs). If an employer retaliates against an employee for blowing the whistle on fraud, then they may be able to file a claim.
Under the DC FCA, protected conduct includes a number of activities, including:
- Reporting illegal or fraudulent activity;
- Investigating, initiating, testifying for, or assisting in a DC FCA action; or
- Refusing to participate in a scheme to defraud the D.C. government.
Retaliation can take many forms under this law, such as termination, demotion, suspension, threats, or any other form of discrimination.
For example, if you are employed by a D.C. government agency and notice that a contract was awarded to a supervisor’s family member without going through the competitive bid process, you may decide to report this potentially illegal or fraudulent activity to someone higher up the food chain. If your supervisor is punished as a result, and decides to demote you, you may have a claim under the DC FCA.
How Can a Whistleblower Recover Under the DC FCA?
Under the DC FCA, whistleblowers have the ability to file a cause of action in a D.C. Superior Court. This type of litigation can lead to a number of outcomes.
If the District recovers proceeds from the fraudulent conduct, a whistleblower may be entitled to up to 40% of that amount. Even if the District does not recover funds, a court may order the violating agency or contractor to reinstate the whistleblower, pay compensation for lost wages and benefits (plus interest), pay litigation costs and reasonable attorney’s fees, and pay punitive damages.
What to Do If You Are Considering Blowing the Whistle As a D.C. Government or Contractor Employee
Serving as a whistleblower is important. It is often the only check on employer abuses, from labor law violations to environmental harm to fraud. Reporting illegal or fraudulent conduct can also be incredibly stressful. Most employees who are put in this position worry about what will happen to them or their jobs if they report their supervisors or employers. Familiarity with D.C. laws on whistleblower protection can help to ease some of this anxiety.
If you are considering blowing the whistle on wrongful conduct, or think that you may have been retaliated against, start by building your case. Keep a detailed log of any statements made by your employer and their actions relating to possible retaliation.
About the Author
Guest author Scott Oswald of The Employment Law Group penned this blog. Scott Oswald is an accomplished trial lawyer who protects whistleblowers by preventing their employers from wrongfully terminating whisteblowers.
Whistleblower Aid
The foregoing is provided by Whistleblower Aid, Inc. for general information purposes and is not intended to be, and should not be, taken as legal advice.
See https://whistlebloweraid.org/contact/#whistleblower-contact for guidance on how to contact Whistleblower Aid.
