Attorneys

Could my employment case be a whistleblower claim?

Many cases that seem to deal with straightforward issues of employment law, such as wrongful termination, workplace safety, harassment or Fair Labor Standards Act (FLSA) violations, may actually contain a whistleblower claim.

Your client may be unaware that there is such a thing as a “whistleblower” and that there are whistleblower provisions in the False Claims Act that not only provide protection for someone reporting fraud, misconduct or other wrongdoing, but also reward whistleblowers for exposing the fraud. It is important to find out if your client was retaliated against for reporting suspected wrongdoing to a supervisor or agency responsible for overseeing the operations of their employer. This may indicate a whistleblower claim.

Beasley Allen has a long relationship with referring attorneys, and we are ready to talk to you about how we can help you with your case. We have a talented team of attorneys dedicated to pursuing whistleblower cases, allowing you to work with a firm that has a proven track record of handling cases involving wrongful conduct.

How can I identify a whistleblower claim?

Always approach a client interview for an employment claim as a potential whistleblower claim. By asking a series of simple questions, you may uncover fraud, waste or abuse. The key is getting your client to open up on what their employer or past employers did and if they conducted any work or took any money from the government. Next, find out if any fraud was committed or any false certifications of abiding by a federal contract; statute; or regulation will give rise to a potential FCA case. These are the type of cases that we would be interested in reviewing.

Ask clients the following questions:

  • What is your employment history?
  • What was your job title and role for each position?
  • What did your employers do?
  • Did any of the companies you worked for either provide the federal or state governments with a service or product or take federal or state funds, grants, monies, etc.?
  • If your company provided a service or product to the government, did you witness or have knowledge of your company defrauding the government?
  • Did your company cut corners in developing a product for the government?
  • Do you certify to the government through a contract or agreement that you would comply with federal regulations, statutes, guidelines, etc.?
  • Did your company disregard any of those federal regulations, statutes, guidelines, etc.?
  • If your company did not directly sell a product or service to the government, did your company know that their product or service was going to be used by the government? (Potentially a claim even if there is a middle-man between the client’s employer and the government, such as a subcontractor defrauding a contractor on a government contract)
  • If your company received federal or state funds, grants, monies, etc., did you witness or know of any false statements made to the government in order to fraudulently receive those funds?
  • Did you certify to the government through a contract or agreement that you would comply with federal regulations, statutes, guidelines, etc.?
  • Did your company disregard any of those federal regulations, statutes, guidelines, etc.?
  • Who else in your company has direct knowledge of the fraud?
  • Are they currently employed by the same company?
  • If not, what is their contact information?
  • Do you have any documents, recordings, etc. regarding the fraud committed against the government?

What are the usual areas of Fraud that may contain a whistleblower case?

  • The health care industry – These claims may include Medicare/Medicaid fraud, upcoding, overbilling, kickbacks, and off-label marketing.
  • Department of Defense (DoD) contractors – Claims may include allegations of false certifications, billing for services not rendered, overbilling and other fraud.
  • Government Contract Fraud – These cases involve situations such as abuse of Small Business Administration (SBA) loans, false representation on grant applications, abuse of Disadvantaged Business Entity or Minority Business Entity status, overbilling, etc.
  • For-profit and private universities are regularly investigated for federal student loan fraud and for compensating admission staff based on the number or students enrolled, which is a violation of the incentive compensation ban. In order to combat this fraud, new Department of Education regulations require every university and college to demonstrate that they prepare students for “gainful employment in a recognized occupation.” The regulations distinguish programs that provide affordable training that leads to well-paying jobs from programs that leave students with poor earnings prospects and high amounts of debt.
  • High-volume visa fraud to illegally obtain foreign employees – This involves false statements, false certifications, and underpayment of taxes to immigrants brought on various visa programs (H1-B, L1-A, L1-B, etc.) to work in the United States.
  • Municipalities and counties commonly receive U.S. Department of Transportation (DOT) funding and must comply with the Americans with Disabilities Act, along with numerous federal regulations, and are prime areas for fraud.

Remember, the FCA provides the cause of action, but there needs to be either a violation of Federal statute, regulation, or agreement/contract with the federal government OR outright misuse of federal monies, typically contrary to a statute, regulation, or agreement/contract with the government in order to qualify under the whistleblower provisions of the False Claims Act.

The importance of acting quickly

If you think you may have identified a potential whistleblower claim, it is important to act fast. The first-to-file rule of the False Claims Act bars anyone but the federal government from intervening in an already-filed whistleblower lawsuit or bringing a related suit based on the same underlying facts. The False Claims Act also allows a later case to be barred even if it provides different details than those contained in the original complaint.

This litigation is often long and complicated. The action is originally filed under seal for 60 days, but the government typically obtains an extension to the initial seal period and can investigate for several months or years in making a decision whether to pursue the case. If the government intervenes and wins the case or settles it, then the whistleblower, known as a relator, can receive 15-25 percent of the proceeds the government obtains. If the government declines to intervene, then the relator has the option of pursuing the case on behalf of the government and can obtain 25-30 percent of the proceeds.

Beasley Allen has a team of lawyers with the experience and resources to help you file a whistleblower claim. Let us assist you in evaluating your potential claim and getting if filed. Contact us by filling out the contact form on this page, or call us at 334-269-2343 or toll-free at 800-898-2034.

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