Whistleblower Protection Under The American Recovery And Reinvestment Act Of 2009

Section 1553 of the American Recovery and Reinvestment Act of 2009 (referred to as the “McCaskill Amendment”) provides extensive whistleblower protections to ensure that the employees of private contractors and state and local governments that receive stimulus funds are free to report fraud, waste and other violations of the ARRA without fear of reprisal.  The McCaskill amendment states that potential whistleblowers cannot be terminated, demoted, or “otherwise discriminated against” by covered employers as reprisal for the employee’s protected disclosures. 

The burden of proof under the McCaskill Amendment only requires that a plaintiff introduce sufficient evidence to demonstrate that his or her disclosure was a “contributing factor” to the reprisal.  The Amendment allows for the use of circumstantial evidence, including evidence that the employer knew about the disclosure or evidence that the reprisal occurred so soon after the disclosure that a “reasonable person” would conclude that the disclosure was a “contributing factor” in the adverse action.  The employer, however, has a higher burden of proof to avoid liability and must demonstrate “clear and convincing” evidence that they would have taken the same action even if the employee had not made the disclosure.

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