Whistleblower protection provided by the retaliation provision of the False Claims Act

posted on:
November 17, 2015

author:
Archie Grubb

The False Claims Act (FCA) permits private individuals, called whistleblowers, to bring suit on behalf of the government when the government is being defrauded. The FCA provides monetary incentives as well as protection from retaliation to reward and protect whistleblowers that report fraud.

The FCA’s monetary incentives include 15 to 30 percent of the damages recovered by the government. The anti-retaliation provision protects the relator (whistleblower) from retaliation from her employer. Protections include (1) reinstatement of employment, with seniority, (2) twice the amount of back pay owed, (3) compensation for any special damages sustained as a result of retaliatory action, and (4) reasonable attorney fees and the cost of the litigation.

The term “employee” does not necessarily mean the relator must be employed by the employer at the time of the suit. The FCA’s legislative history provides that “[a]s is the rule under other Federal whistleblower statutes as well as discrimination laws, the definitions of ‘employee’ and ‘employer’ should be all-inclusive. Temporary, blacklisted or discharged workers should be considered ‘employees’ for purposes of this act.”

The three elements that a whistleblowing employee must meet in order to successfully bring an anti-retaliation suit under the FCA are: (1) the employee engaged in a protected activity; (2) the employer knew that the employee engaged in the protected activity; and (3) the employer discharged or otherwise discriminated against the employee as a result of the protected activity.

First, the employee must show she had a reasonable belief that someone was committing fraud against the government and that she investigated that possible fraud. The investigation of the fraud is protected activity under the FCA, even if the employee was not aware of the FCA’s existence at the time of her investigation. The FCA’s legislative history documents the government’s intent that “protected activity” be interpreted broadly.

Second, the employer must have been on notice that litigation was a reasonable possibility. For example, an employee reporting the fraudulent conduct to her supervisor and stating that she does not want to go to jail likely satisfies this requirement.

Finally, the requirement that employer discharged or otherwise discriminated against the employee as a result of the protected activity applies not only to work-related discrimination but also may apply to discrimination outside the workplace. Threats, unfavorable references, and legal actions brought for the purpose of harassment may be deemed retaliatory.

Proving this third element shifts the burden of proof from the employee to the employer. The employer then has the burden to show that the same decision would have been made even if the employee had not engaged in the protected activity. An employee that proves all three elements and is not barred by the three-year statute of limitations may recover not only her position in the company, with seniority, but also twice the amount of back pay owed, compensation for any special damages sustained, and other relief.

Are you aware of fraud being committed against the federal government, or a state government? If so, the FCA can protect and reward you for doing the right thing by reporting the fraud. If you have any questions about whether you qualify as a whistleblower, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team: Andrew Brashier, Archie Grubb, Larry Golston, or Lance Gould.

Sources:
31 U.S.C.A. § 3730(h)
S. REP. 99-345, at 34-35.

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