The whistleblower protection provisions in the False Claims Act make it easier and safer for individuals to come forward to provide evidence of fraud against the federal government. When a whistleblower comes forward, it is almost certain that those responsible for defrauding the government will try to retaliate against them. Several provisions are in place to help reduce the chances of this occurring.
Whistleblower Protection: Anonymity
The most effective protection for a whistleblower is to maintain anonymity. It’s logical that if the identity of an employee who has decided to be a whistleblower is unknown, the employer cannot retaliate against them. However, this anonymity is difficult to maintain. If an individual decides to blow the whistle, it will be practically impossible to keep this anonymity if the lawsuit goes to trial or settlement.
The False Claims Act does not have the strongest provisions for protecting a whistleblower’s identity. Other whistleblower statutes, such as those designed to help the US Securities and Exchange Commission, are more effective at protecting the whistleblower’s identity. However, the False Claims Act requires certain procedures in a whistleblower lawsuit which can help maintain the anonymity of the whistleblower for as long as possible.
First, the False Claims Act requires that the lawsuit begin by filing the complaint under seal. This means filing the complaint with the court in secret to keep it hidden from the public for a certain period of time. This will be at least 60 days while the federal government investigates the alleged fraud and decides whether it will join in the lawsuit. Most of the time, the government will want more than 60 days to do this investigation and can get extensions that can make the process lasts for many months or years. During this investigatory period, the whistleblower should be able to maintain anonymity.
After this investigator period ends, the identity of the whistleblower may no longer remain secret if the federal government or whistleblower decides to continue the lawsuit against the defendant (the alleged False Claims Act violator). But if the government and the whistleblower decide not to continue with the lawsuit once the investigation has ended, it’s possible for the complaint to remain under seal. Even if the court lifts the seal after discontinuing the lawsuit, anonymity is still possible since the defendant will not receive service of the complaint. The complaint will still be of public record, however, so it’s possible for the defendant to learn about the whistleblower, but the odds of discovery are relatively low.
Lastly, even if the government negotiates a settlement with the defendant, the whistleblower can remain anonymous a little while longer if the government can get the court to keep the complaint under partial seal. This means the complaint will become public, but information that reveals the whistleblower’s identity will not. If the parties reach a settlement, the whistleblower’s identity will almost certainly become public.
Since the chances are high that a whistleblower’s identity will eventually become public knowledge, even if there are no leaks or lapses in secrecy, the False Claims Act has anti-retaliation provisions that will punish an employer who retaliates against a whistleblowing employee. These protections also apply if the whistleblower is not an employee and is just a contractor or agent.
Specifically, an employer cannot discriminate, demote, harass, suspend, fire or threaten the whistleblower because the whistleblower has lawfully acted to stop the fraudulent activity against the federal government. If the employer retaliates against the employee, it will face potential financial penalties.
Sometimes the retaliation is obvious, such as an employer sending the whistleblower an e-mail informing them of job termination because they reported the fraudulent activity to the government. In other situations, the retaliation can be more subtle, like when an employer decides not to promote the whistleblower, reassigns the whistleblower to a less desirable position or assignment or makes offhand remarks about “snitches” and how they “always get what they deserve.”
If a whistleblower successfully proves they are the victim of retaliation for reporting unlawful conduct under the False Claims Act, the whistleblower could receive reinstatement to the original work ranking or status, double the amount of back pay, interest and special damages. Typical special damages include reimbursement of attorneys’ fees and court costs of the lawsuit.
To use the False Claims Act’s anti-retaliation protections, the whistleblower must file the retaliation lawsuit in the appropriate federal court. Also, the retaliation lawsuit must begin within three years of the retaliatory action. This three-year requirement is sometimes called a statute of limitations.
Concerned about What Happens If You Are a Whistleblower?
Deciding to become a whistleblower is a significant decision that requires understanding the whistleblower protection provisions in the False Claims Act. To find out more about these provisions, contact the Bothwell Law Group.