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Protections for whistleblowers are essential for the False Claims Act to work correctly.

Without adequate protections for whistleblowers, fewer individuals will come forward to report fraud. The act of blowing the whistle is a stressful and challenging decision. Most potential whistleblowers know they might face backlash for bringing the fraud to light. Congress understands these risks. So, there are several provisions in the Claims Act to provide protections for those who serve as whistleblowers.

Confidentiality of the Whistleblower

The best protection for a whistleblower is to stay unknown. This is somewhat easy to do early in the whistleblowing process. An anonymous email or phone call to the right government regulating agency may be enough to stop the fraud and catch those responsible. But in most situations, that’s not enough. The phone call or email may be enough to start an investigation. But it’s probably not enough to result in prosecution of the responsible parties.

To make the most of the whistleblowing, a qui tam lawsuit may be necessary. This is a unique civil lawsuit where a whistleblower (called a relator), sues the responsible party on behalf of the federal government. To begin a qui tam lawsuit, the relator will file the civil complaint “under seal.” That is a legal term for “in secret.” After filing the complaint, the relator will notify only the government about the qui tam action. The government will then investigate the case and determine if it will join the relator in the qui tam action.

During this investigation period, which can last many months, the identity of the whistleblower will remain hidden. That means the whistleblower will be relatively safe. But as the case proceeds through court, the responsible party will likely discover who the whistleblower is.

Rewarding the Whistleblower

One possible way to protect the whistleblower is to provide a financial reward for blowing the whistle. The chance for a potentially sizeable reward can provide financial protection in case the whistleblower loses his or her job or is unable to find continued employment. This reward is only possible if the whistleblower brings a qui tam action. Or, if there is a specific whistleblowing law that allows for the reward.

In most cases, the reward will only be possible in a qui tam action brought under the False Claims Act. This means the whistleblower can expect an award that is equal to 20 to 25 percent of the total amount of money recovered by the government. In some situations, the whistleblower will receive less. For example, when they have relatively little involvement in gathering additional evidence of the fraud or they actually took part in it. But in some cases, they can receive more, such as 30 percent of the total amount of money recovered. This is possible when the whistleblower receives little, if any, help from the government during the qui tam lawsuit.

False Claims Act Anti-Retaliation Provisions

Finally, there are the anti-retaliation provisions in the False Claims Act. These prohibit an employer from retaliating against a whistleblowing employee. The retaliation can take many forms, including firing and employee discipline. If the whistleblower can prove retaliation, they can potentially receive double the amount of actual damages (such as lost wages) plus reinstatement and attorney’s fees.

To prove retaliation, the whistleblower must establish three things: that the employee participated in whistleblowing activities, the employer knew who the whistleblowing employee was and the employer discriminated against the employee because he or she was a whistleblower. This last requirement is often the hardest to prove. An employer who really wants to retaliate against the employee will often make up some other explanation for the firing.

For example, the employer will say they fired the employee because he or she was late to work or had other unrelated disciplinary issues. The employer will also try to hide the fact that it knew who the whistleblower was. Remember, the employer cannot be liable for retaliation if it didn’t know the identity of the whistleblower. It’s impossible for an employer to retaliate against a whistleblower if it didn’t realize the whistleblower engaged in whistleblowing activities. All this means that whistleblowers sometimes have a difficult battle proving that the employer violated the False Claims Act’s anti-retaliation provisions.

Is It Enough?

That’s a loaded question and one that is impossible to answer without more information. Whether protections for whistleblowers are adequate will depend on where the retaliation may come from, if a qui tam reward is possible and the chances that reporting fraud will result in an investigation or court case. To get a better understanding of the risks of whistleblowing, an individual should consult with an attorney who does work on whistleblower cases.

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