Scroll Top
Bothwell Law Group 304 Macy Dr, Roswell, GA 30076
False Claims Act Retaliation

False Claims Act RetaliationAre you looking for information about False Claims Act retaliation? The Federal Claims Act (FCA) allows anyone to bring what is called a “qui tam” action in federal court against wrongdoers, on behalf of the U.S. government. The only requirement in order to bring this action is that the person bringing the suit must have knowledge of action taken by an individual or organization to fraudulently or falsely collect payment from the U.S. government.

The so-called “whistleblower” provisions of the FCA provide financial incentives for people to come forward with evidence of wrongdoing because often the people closest to the fraud can detect it earlier, and with more success than the government could do.

As discussed in previous blog posts, the criminal FCA provides for substantial penalties and sanctions for violators. The government recognized that this could create scenarios where people are afraid to report violations because of potential retaliation, so Section 3730(h) of the FCA includes provisions designed to protect whistleblowers from retaliatory actions by their current or former employers, as discussed more fully below.

How Are Employees Protected Against Retaliation from their Employers under the FCA?

Section 3730(h) of the FCA reads in part:

“Any employee who is discharged, demoted, suspended threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer, because of lawful acts done by the employee on behalf of the employee or others in furtherance of a [qui tam action], including investigation for, initiation of, testimony for, or assistance in a [qui tam] action filed or to be filed … shall be entitled to all relief necessary to make the employee whole.”

In that section, the FCA lays the foundation that employees or former employees bringing qui tam actions are entitled to relief. That relief is then specified in the sentences that follow:

“Such relief shall include reinstatement … two times the amount of back pay, interest … compensation for any special damages … including litigation costs and reasonable attorneys’ fees … An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.”

These broad financial incentives are intended to make employees more comfortable bringing qui tam actions and put employers on notice that retaliatory action of any kind will result in stiff penalties.

What Types of Whistleblower Activities Are Protected?

Not all conduct is protected under the whistleblower protection provisions. In making the determination, courts will assess whether:

  1. The employee in good faith believes that the employer is committing fraud against the government; and
  1. A reasonable employee in the same or similar circumstances might believe that the employer is committing fraud against the government.

The whistleblower must also prove that he or she was engaged in protected conduct and that he or she was discriminated against because of the protected conduct.

“Protected conduct” means the employee was doing something to stop or limit FCA violations. This can mean filing a whistleblower qui tam case, but it can also just mean that the employee investigated and/or reported suspicions of fraudulent activity.

When an employee brings a retaliation claim, employers will generally try to narrow the scope of the whistleblower retaliation provision. However, Congress’ original goal and ultimate purpose of section 3730(h) are to stop employers from silencing whistleblowers. Courts reviewing whistleblower actions look at them through this lens and interpret “protected activity” and “protected conduct” broadly.

Whistleblower Protection Is not Automatic

Employees should know, while the law provides protection for them from retaliation by their employers, protection is not automatic, nor is it pre-emptive. So, an employer could very well terminate or take other action against an employee initially. The employee will have to prove the circumstances meet the requirements of the whistleblower retaliation provisions of the FCA in order to prevail.

While there is always the possibility an employer will take retaliatory action against an employee who reported a violation of the FCA, the Act’s provisions protecting whistleblowers are a major deterrent for such retaliatory actions.

At the end of the day, someone who knows or suspects a violation has occurred has a legal and ethical obligation to report the violation. Thanks to the whistleblower protection provisions of the FCA, employees don’t need to fear financial ruin for doing the right thing.

Find out what you need to know about False Claims Act retaliation by calling our legal team at 770.643.1606. Our experienced attorneys at Bothwell Law Group exclusively represent whistleblowers’ interests.

Related Posts