S. 1524 — Introduced in Senate

II 118th CONGRESS 1st Session S. 1524 IN THE SENATE OF THE UNITED STATES May 10, 2023Mr. Peters (for himself and Mr. Braun) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To ensure that whistleblowers, including contractors, are protected from retaliation when a Federal employee orders a reprisal, and for other purposes. 1. Short title This Act may be cited as the Expanding Whistleblower Protections for Contractors Act of 2023. 2. Defense contractor employees: protection from reprisal for disclosure of certain information Section 4701 of title 10, United States Code, is amended— (1) in subsection (a)— (A) in paragraph (1)— (i) in the matter preceding subparagraph (A)— (I) by striking An employee and all that follows through services contractor and inserting A protected individual; and (II) by striking disclosing and all that follows through evidence of; and (ii) by striking subparagraphs (A), (B), and (C) and inserting the following subparagraphs: (A) Objecting or refusing to participate in any activity, policy, practice, or assigned task that the protected individual reasonably believes to be in violation of any law, rule, order, or regulation related to any contract, subcontract, grant, or subgrant. (B) Disclosing to a person or body described in paragraph (2) information that the protected individual reasonably believes is evidence of the following: (i) Gross mismanagement of any Department of Defense contract or grant, any gross waste of Department funds, any abuse of authority relating to any Department contract, subcontract, grant, or subgrant, or any violation of law, rule, or regulation related to any Department contract or subcontract (including the competition for or negotiation of a contract or subcontract) or grant or subgrant. (ii) Gross mismanagement of any National Aeronautics and Space Administration contract or grant, any gross waste of Administration funds, any abuse of authority relating to an Administration contract, subcontract, grant, or subgrant, or any violation of law, rule, or regulation related to any Administration contract or subcontract (including the competition for or negotiation of a contract or subcontract) or grant or subgrant. (iii) A substantial and specific danger to public health or safety. ; and (B) in paragraph (3)— (i) in subparagraph (A), by striking an employee and inserting a protected individual; and (ii) by striking subparagraph (B) and inserting the following subparagraph: (B) it shall not be within the authority of an executive branch official to request that a contractor, subcontractor, grantee, or subgrantee engage in a reprisal prohibited by paragraph (1). ; (2) in subsection (c)— (A) in paragraph (1), by adding at the end the following subparagraph: (E) Propose appropriate disciplinary action against any executive branch official for any request made of a contractor, subcontractor, grantee, or subgrantee that subjected the complainant to a reprisal prohibited by subsection (a). ; and (B) by striking paragraph (7) and inserting the following paragraph: (7) Clarification for scope of waiver restrictions (A) The rights, forum, and remedies provided for in this section may not be waived by any public or private agreement, policy, form, or condition of employment, including by any predispute arbitration agreement. (B) No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section. ; (3) in subsection (f)— (A) by striking an employee and inserting a protected individual; and (B) by striking the employee and inserting the protected individual; (4) by redesignating subsection (g) as subsection (h); (5) by inserting after subsection (f) the following new subsection: (g) Affirmative defense Engaging in any activity protected against reprisal under this section shall be an affirmative defense in any civil or criminal action that seeks liability for engaging in such activity. ; and (6) in subsection (h), as so redesignated— (A) in paragraph (3), by inserting , including any Federal award as defined in section 2(a) of the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) after agency; (B) in paragraph (4), by inserting , including any person that is recipient of a Federal award as defined in section 2(a) of the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) after agency; and (C) by adding at the end the following new paragraph: (8) The term protected individual means— (A) a contractor, subcontractor, grantee, or subgrantee of the Department of Defense or the National Aeronautics and Space Administration, including— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i); and (iii) any entity that is recipient of a Federal award as defined in section 2(a) of the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note); (B) an employee, applicant, or former employee of a contractor, subcontractor, grantee, or subgrantee of the Department of Defense or the National Aeronautics and Space Administration, including an employee of— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; and (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i); or (C) a person performing personal services for the Department of Defense or the National Aeronautics and Space Administration pursuant to a contractual agreement for the performance of personal services, including a personal services contract or personal services agreement, and who engages in an activity for which any reprisal is prohibited under subsection (a), including a person performing personal services pursuant such a contractual agreement for— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; and (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i). . 3. Enhancement of non-defense contractor protection from reprisal for disclosure of certain information Section 4712 of title 41, United States Code, is amended— (1) in subsection (a)— (A) by striking paragraph (1) and inserting the following paragraph: (1) In general A protected individual may not be discharged, demoted, or otherwise discriminated against as a reprisal for the following: (A) Objecting or refusing to participate in any activity, policy, practice, or assigned task that the protected individual reasonably believes to be in violation of any law, rule, order, or regulation related to any contract, subcontract, grant, or subgrant. (B) Disclosing to a person or body described in paragraph (2) information that the protected individual reasonably believes is evidence of the following: (i) Gross mismanagement of any Federal contract or grant, any gross waste of Federal funds, any abuse of authority relating to any Federal contract, subcontract, grant, or subgrant, or any violation of law, rule, or regulation related to any Federal contract or subcontract (including the competition for or negotiation of a contract or subcontract) or grant or subgrant. (ii) A substantial and specific danger to public health or safety. ; and (B) in paragraph (3)— (i) in subparagraph (A), by striking an employee and inserting a protected individual; and (ii) by striking subparagraph (B) and inserting the following subparagraph: (B) it shall not be within the authority of an executive branch official to request that a contractor, subcontractor, grantee, or subgrantee engage in a reprisal prohibited by paragraph (1). ; (2) in subsection (c)— (A) in paragraph (1), by adding at the end the following new subparagraph: (E) Propose appropriate disciplinary action against any executive branch official for any request made of a contractor, subcontractor, grantee, or subgrantee that subjected the complainant to a reprisal prohibited by subsection (a). ; and (B) by striking paragraph (7) and inserting the following paragraph: (7) Rights, forum, and remedies not waivable (A) In general The rights, forum, and remedies provided for in this section may not be waived by any public or private agreement, policy, form, or condition of employment, including by any predispute arbitration agreement. (B) Validity No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section. ; (3) in subsection (e)— (A) by striking an employee and inserting a protected individual; and (B) by striking the employee and inserting the protected individual; (4) in subsection (g)— (A) by redesignating paragraph (2) as paragraph (3); (B) by inserting after paragraph (1) the following new paragraph (2): (2) The term contract includes any Federal award as defined in section 2(a) of the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note). ; and (C) by inserting after paragraph (3), as so redesignated, the following new paragraph: (4) The term protected individual means— (A) a contractor, subcontractor, grantee, or subgrantee of the Federal Government, including— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i); and (iii) any entity that is recipient of a Federal award as defined in section 2(a) of the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note); (B) an employee, applicant, or former employee of a contractor, subcontractor, grantee, or subgrantee of the Federal Government, including an employee of— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; and (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i); or (C) a person performing personal services for the Federal Government pursuant to a contractual agreement for the performance of personal services, including a personal services contract or personal services agreement, including a person performing personal services pursuant to such a contractual agreement for— (i) the government of each of the several States, the District of Columbia, an Indian tribe or authorized tribal organization, 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; and (ii) the government of any political subdivision of, agency of, or instrumentality of, a government listed in clause (i). ; (5) by redesignating subsection (h) as subsection (i); and (6) by inserting after subsection (g) the following new subsection: (h) Affirmative defense Engaging in any activity protected against reprisal under this section shall be an affirmative defense in any civil or criminal action that seeks liability for engaging in such activity. .