CROMNIBUS Bill Anti-Gag Provision Protects Whistleblowers

A little-noticed provision of the bill responsible for funding the entire United States Government at the start of 2015 may have a huge impact on the contracting world going forward. Buried in the 1600-plus pages of the CROMNIBUS bill, which was passed in December 2014 and named like a robot action figure, is this section:

Sec. 743. (a) None of the funds appropriated or otherwise made available by this or any other Act may be available for a contract, grant, or cooperative agreement with an entity that requires employees or contractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contactors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

See Consolidated and Furthering Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 743(a).

Now, I have an idea as to which protector of whistleblower legislation is responsible for the language and what case brought up the need for such language, but those are stories for another day.

The point here is that this is an important new anti-gag law that was needed, as it comes at a time when every attempt is being made, in the media and in court, to limit the rights of whistleblowers and depict them as unfavorably as possible.

With that said, however, this law may not have come soon enough for the many contracted employees who were sent overseas and told they had to keep all such information confidential—or lose their jobs. Of course, there are many other ways unscrupulous contractors can invent to restrict the right of whistleblowers to report fraud. Here at least, the language used by the drafters of the CROMNIBUS bill makes it very painful for employers to require such a confidentiality agreement.

It means the very act of using such a confidentiality requirement would violate a condition of payment for government funds. Conditions of payment are a big deal in False Claims Act cases, and this bill will hopefully help to reverse the trend toward sympathizing with attacks against the whistleblower, which distracts everyone from the underlying fraudulent activity reported by the whistleblower.

Up until now, trying to get judges, the press, and the public to weigh those issues fairly has been difficult.  When a whistleblower faces language in an employment contract requiring confidentiality, even for reporting fraud, self-righteous fraudsters could complain about the whistleblower’s conduct and fire them. Now we can at least take a CROMNIBUS to them.

Overall, it’s sad that such language is necessary.  Should we really have to go to the point of fighting for the right of individuals to be able to report fraud committed against the United States to their own government?  Should that actually have to be spelled out in legislation?

This is the problem we now face born out of the success of the False Claims Act. A few years ago, when the whole world didn’t know about False Claims Cases, many employers were a little more complacent about it.  You would think that the reaction to the False Claims Act and the growing success of whistleblowers to provide FCA information would be to stop ripping off the government.

Simply not lying to the government to get money is still the best way to avoid False Claims Act liability.  It’s not that hard to do and many companies that do business with the government (the vast majority, I venture to say) successfully follow this simple strategy.

With a small minority focusing on making it more difficult for whistleblowers to report fraud at every possible turn, rather than fixing their practices, it’s very encouraging to see some language somewhere in legislation that protects against at least one of these practices.