The American Recovery and Reinvestment Act of 2009 gave protection to employees who blew the whistle on their companies bad behavior.

1. Whistleblower Provision
Under the American Recovery and
Reinvestment Act of 2009
“ARRA”

2. Whistleblower Objectives
 Review law
 Summarize actions and remedies
 Suggest best practices
Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 2

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

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

5. Whistleblower
 Examples:
 False Claims Act
 Big Tobacco Scandal
 Enron
Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 5

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

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

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

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

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

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

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

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

14. Food for Thought
 Will there be an increase in whistleblowing?
 In turn, will there be an increase in employer
retaliation; therefore, more lawsuits?
Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 14

15. Whistleblower Information
 For additional information go to:
www.recovery.gov
 http://www.thevirtualhrdirector.com
 gary@thevirtualhrdirector.com
Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 15