False Claims Act and Whistleblower Employee Protections

Anti-Retaliation Protections

Whistleblowers play an important role in exposing fraud and other improper activities against the government.  Employee whistleblower protection was added to the False Claims Act as part of the 1986 amendments to stop employers from using the threat of retaliation to keep whistleblowers quiet, and to assure those considering exposing fraud that they are legally protected from retaliatory acts.  Congress specifically stated that employee protection extends to the qui tam whistleblower, anyone assisting the qui tam whistleblower, and anyone working with the government “in furtherance of” a False Claims Act action. In 2009, Congress extended whistleblower employee protection against retaliation to contractors and agents; persons other than employers potentially may be liable for retaliation.  As a result, federal law prohibits employers from taking retaliatory action against both employees who file qui tam actions and those who assist them.

Compliance officers and other employees who bear the responsibility for investigating fraud, however, are not afforded the same protection from retaliation as other employees who discover fraudulent activity.  Because a compliance officer’s obligation is to investigate and report a company’s improprieties, the officer is required to show more than mere knowledge.  A compliance officer must meet the higher burden of more explicit notice, including that he threatened the employer with a False Claims Act action or government investigation.

The whistleblower is entitled to reinstatement with seniority, double back pay, interest, special damages sustained as a result of discriminatory treatment, and attorneys’ fees and costs.  To establish a claim for retaliation, the whistleblower must engage in conduct protected by the False Claims Act.  Second, the courts require a showing that the defendant have some notice of the protected conduct that the whistleblower was either taking action in furtherance of a qui tam action, or assisting in an investigation or actions brought by the government.  The protection against retaliation extends to whistleblowers whose allegations could legitimately support a False Claims Act case even if the case is never filed.  Finally, the whistleblower must show that the suspension, firing, demotion, harassment or threat was in retaliation for the protected activities.  A False Claims Act retaliation case can include whistleblower claims and other legal claims based upon other state and federal laws, and a claim for retaliation may be brought in federal court.

Statute Of Limitations For Qui Tam Whistleblower Retaliation Cases

The False Claims Act includes a six-year statute of limitations for bringing civil claims.  However, there was some disagreement among the courts concerning the applicability of this period to retaliation actions brought pursuant to the whistleblower protection provision of the False Claims Act. The Supreme Court recently held that courts must use the most analogous state law to find a limitations period for a retaliation action under the False Claims Act.  However, there is a large variance in the statute of limitations for wrongful or retaliatory discharge among the states, ranging from thirty days to six years, although the most common state limitations period is two years.  Therefore, it is imperative for a whistleblower to act quickly after retaliation has occurred.

Speak To An Attorney

The law protects and encourages employees and others to expose fraud against the government.  If you are an employee, contractor or agent who is considering filing – or already has filed – a qui tam action, seek the counsel of an experienced attorney.  Contact Michael S. Bigin or Laurence J. Hasson to learn about your rights and how to protect them.