On June 24, 2024, the U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction, stopping the U.S. Department of Labor (“DOL”) from enforcing three key elements of regulations related to the Davis-Bacon Act and Related Acts (“DBA” or “Act”). The court order issued in Associated General Contractors v. U.S. Department of Labor will provide significant comfort and certainty to contractors that perform work on federally funded construction projects.Continue Reading Nationwide Injunction Halts Key Provisions of Davis-Bacon Act Regulations
Eleventh Circuit Holds that a Sincere Belief is not the Same as a Reasonable One Under the False Claims Act’s Retaliation Provision
On January 19, 2021, the Eleventh Circuit affirmed a district court’s rejection at summary judgment of a disgruntled employee’s False Claims Act (FCA) retaliation claim in Hickman v. Spirit of Athens, No. 19-10945 (11th Cir. Jan. 19, 2021). The Court’s decision makes clear that, despite expansions to the FCA in 2009 and 2010 protecting employees who engage in “efforts to stop 1 or more violations” of the FCA, plaintiffs must nevertheless establish that they held an objectively reasonable belief that they were attempting to prevent the submission of false claims to the government for their conduct to constitute protected activity.
The plaintiffs worked for Spirit of Athens, a nonprofit organization. The executive director became concerned in reviewing tax returns that $61,000 of the organization’s expenses were generally categorized as “other expenses” without any further explanation. The executive director verbally retracted her signature on the tax forms, but the organization’s president signed and submitted them himself. The executive director and her assistant then arranged for the board members to receive a copy of the tax documents, shared their concerns with the president, and even hired an outside firm to audit the organization’s tax returns. Apparently unhappy with the executive director and her assistant’s conduct, the president fired them. The two then brought suit against the organization, claiming that they were terminated for “their attempts to combat the organization’s misuse of federal funds.” The district court granted summary judgment for the defendant, finding that plaintiffs had failed to establish that they had engaged in protected activity under the FCA.Continue Reading Eleventh Circuit Holds that a Sincere Belief is not the Same as a Reasonable One Under the False Claims Act’s Retaliation Provision
President Issues Executive Order Addressing Use of Foreign Labor in Federal Contracting and Hiring
On August 3, 2020, President Donald Trump issued an Executive Order framed as “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers.” The Order declares the “policy of the executive branch to create opportunities for United States workers to compete for jobs, including jobs created through Federal contracts,” and directs
Let’s Talk FCA: False Claims Act Whistleblowers
In this episode, hosts Jason Crawford and Mana Lombardo speak with Trina Fairley Barlow, a partner in the firm’s Labor and Employment and Government Contracts groups, and Christine Hawes, counsel in the Labor & Employment Group, to discuss the False Claims Act’s retaliation provision and considerations for investigating FCA allegations brought by whistleblowers. “Let’s Talk
Final FAR Rule on Internal Confidentiality Agreements: Considerations for Contractors Before Employees Sign on the Dotted Line
On January 13, 2017, the FAR Council released a final rule (available here) that: (1) prohibits agencies from contracting with entities that require employees/subs to sign internal confidentiality agreements or statements that restrict the lawful reporting of waste, fraud, or abuse; and (2) requires bidders on federal contracts to certify that they do not utilize such agreements. Starting on January 19, 2017, the rule will apply to all solicitations and contracts using fiscal year 2015 funds and subsequent fiscal year funds, unless the solicitation or contract already contains a comparable provision/clause.
Continue Reading Final FAR Rule on Internal Confidentiality Agreements: Considerations for Contractors Before Employees Sign on the Dotted Line
Enhancing Whistleblower Protections for Contractor Employees (Permanently?)
Senator McCaskill’s bill, S.795 “A Bill to Enhance Whistleblower Protection for Contractor and Grantee Employees,” is on President Obama’s desk for signature. According to the Senate Report, the bill would make permanent the current pilot program, expiring this month, that ensures that employees of civilian contractors are protected from retaliation, namely that “anyone who reports the misuse of federal funds could not be demoted, discharged, or discriminated against because of the disclosure.”
While the pilot program has been in place for several years, the frequency of whistleblower reprisal actions has increased recently. Whistleblower protections have also been the subject of recent Congressional interest, and the Government Accountability Office is auditing the current pilot program. Rather than wait for the results of the audit, however, Congress chose to push forward with the current legislation (which has received bipartisan support) in the waning days of the Obama Administration. Should the bill become law, contractors and grantees might take the opportunity to reexamine their compliance with the pilot program, as well as review how whistleblowers are treated and how their allegations are investigated and documented in order to mitigate the risk of liability in face of rising pressure to sustain allegations.
Whistleblowers (and those who might claim that status following a negative employment action) have many methods of seeking government help to address their concerns, including qui tam lawsuits, wrongful termination litigation, and whistleblower reprisal allegations brought before various government agencies. Each of these actions invites the government into a contractor or grantee’s operations, as well as records, and increases pressure on the company.
Continue Reading Enhancing Whistleblower Protections for Contractor Employees (Permanently?)