Protecting the Whistleblower Archives - National Whistleblower & Government Fraud Settlement Attorney

What Are the Whistleblower Protection Provisions in the False Claims Act?

Posted on March 13, 2017 by Mike Bothwell

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.

Anti-Retaliation Provisions

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.

Can the Federal Whistleblower Protection Act Be Counted on No Matter What?

Posted on January 9, 2017 by Mike Bothwell

The Federal Whistleblower Protection Act was a landmark piece of legislation in the history of government whistleblowing. It provided new protections for those employed by the government that “blew the whistle” (reported) on various illegal and immoral acts committed by other government employees.

Before this Federal Whistleblower Protection Act passed in 1989, there were relatively few systematic protections for whistleblowers. As a result, the number of government employees who filed reports of illegal and unethical behavior was fairly small. It is also important to note that the people who did file reports were often subject to harassment, punishment, and even termination. Lawmakers saw the need for a piece of wide-reaching legislation.

Actions Covered by the Federal Whistleblower Protection Act

The Federal Whistleblower Protection Act covers a wide range of different actions that are typically called “whistleblowing.” The actual wording of the legislation provides protection to as many people as possible. The law states that whistleblowers may make reports that they believe “reasonably evidences” a violation of law, regulation or legal rule. They also have protection if they report gross mismanagement, gross waste of taxpayer dollars, abuses of authority or threats to public health and safety.

Federal Agencies Involved in Enforcing the Whistleblower Protection Act

There are several federal agencies dedicated to the enforcement of the Federal Whistleblower Protection Act. These include the Office of Special Counsel, the Merit Systems Protection Board, and the Court of Appeals for the Federal Circuit. While these agencies have all been subject to controversy regarding their protection of whistleblowers at one time or another, they undergo constant reforms with the intention of better protecting those who report unethical and illegal government behavior.

The Office of Special Counsel

The purpose of the Office of Special Counsel is to investigate whistleblower complaints. It has successfully investigated multiple complaints made against members of the Federal government on various occasions. However, it has been at the center of controversy in recent years.

It all started in October 2008, when Scott Block (who was then special counsel) quit during an FBI investigation regarding the Office’s operations. He was allegedly deleting computer files of people who had complained about his management practices. The irony of the situation was clear to a presidential candidate named Barack Obama, who vowed on the campaign trail to appoint a new special counsel committed to the rights of whistleblowers. It took President Obama several years to do so, but he eventually appointed Carolyn Lerner to the post. There have not been any similar controversies since her appointment.

The Merit Systems Protection Board

The Merit Systems Protection Board is a quasi-judicial agency that rules on whistleblower complaints. However, the Merit Systems Protection Board, sometimes referred to as the MSPB, has its share of controversy as well. Since 2000, only three out of 56 cases brought by whistleblowers have resulted in rulings favorable to the whistleblowers. This has led to a great deal of scrutiny of the MSPB.

Again, President Obama decided on reforms. He appointed a new chairperson and vice-chairperson, which many regard as merely the beginning of the changes necessary to truly turn around the MSPB. Upcoming cases will reveal whether the Board will start coming up with rulings that are more favorable to whistleblowers.

The Court of Appeals for the Federal Circuit

The Court of Appeals for the Federal Circuit, sometimes referred to as the CAFC, is the court that hears whistleblower cases ruled on by the Merit Board. Similar to the other two agencies involved in investigating and ruling on Federal whistleblower cases, it has attracted controversy for its operations. Many members of Congress, notably Senator Chuck Grassley of Iowa, have raised issues with its rulings. Some say the Court has misinterpreted whistleblower laws and set precedents weighted against the whistleblowers.

The numbers suggest that those who have taken issue with the Court may have a point. Between 1994 and 2010, the Court heard 203 cases. Out of these 203 cases, only three resulted in rulings for the whistleblowers. Unlike the other two federal organizations, there have been no efforts to reform the CAFC. The fact that the Court began in 1982, before the passage of the Federal Whistleblower Protection Act, has been a focal point of calls to reform the CAFC. There are suggestions that a new court should be set up specifically to hear whistleblower cases.

Can you always count on protection from the Federal Whistleblower Protection Act? While you may remain protected from retaliation, it’s true that new reforms may need to take place so more whistleblowers can experience the full benefits of the act as it was intended. To get more information, contact the skilled Federal Whistleblower Protection Act attorneys at Bothwell Law Group by calling 770.643.1606 today. We will fight hard to give you the legal representation you deserve. We have many years of experience working these sorts of cases, so you can rest assured we know what we’re doing.

What Is FCA Whistleblower Protection and What Is Its Legal Reach?

Posted on December 23, 2016December 20, 2016 by Mike Bothwell

Are you looking for more information about FCA whistleblower protection? Becoming a whistleblower can be frightening. You know something is very wrong and you know you must report it, but what about your job? What about your income? Fortunately, you’re backed up by FCA whistleblower protection.

How Does FCA Whistleblower Protection Affect You?

The top reason people don’t report offenses against the False Claims Act is fear of losing their job and income. They may also worry about other consequences. The FCA whistleblower protection law keeps you safe from any retaliation from your employer.

The Qui Tam law is the part of the law that allows you to bring a case to the government. It means you bring a case ‘on behalf of the king.’ Qui Tam laws have existed since the Middle Ages.

During the American Civil War, Abraham Lincoln’s government created the False Claims Act. This Act was to stop people who were selling unfit horses and faulty guns and ammunition to both sides. The Qui Tam law allows people who don’t work for the government to report offenses. The protection means people cannot lose their job for reporting fraud.

What Is the Legal Reach of FCA Whistleblower Protection?

The FCA whistleblower protection does not just apply to government workers. Whistleblowers can also be ordinary citizens who have discovered dishonesty or fraud. Here’s an example: Imagine you learn your neighbor is reporting to Medicare that they have a caretaker come into their home on a daily basis. They receive payment for those daily visits. As you live close by, you know the caregiver only visits two days a week.

You might hesitate to report this information due to potential retaliation from the neighbor. The FCA whistleblower protection makes sure no harm comes to a citizen who reports fraud.

What Protection Does The FCA Whistleblower Protection Law Provide?

The FCA Whistleblower Protection is there so you will not suffer any harm from reporting an offense. Although losing a job is the most common worry for whistleblowers, the law covers other things as well. For example:

● Your employer cannot stop you from using safety equipment at work
● Your boss cannot threaten you with losing your job
● Your employer cannot reduce your hours
● Your company cannot give you a pay cut
● Your employer cannot demote you

The customary criminal laws still apply. For example, if your employers threaten violence, they will face charges for that offense. These rules are important to remember if you have to report any fraud.

Will FCA Whistleblower Protection Keep Me from Financial Loss?

Yes. If the facts prove a whistleblower has lost their job or income due to reporting their employer, the law makes sure the worker gets their job back. It states you must return to a “superior position.” In other words, if they fire you, you will get your same job back. Your employer cannot hire you back in a lesser position.

For instance, if you were a manager, they could not take you back on as a laborer. They must return you to management. But if your employer fires you, it may take some time before you return to your job. Under the False Claims Act whistleblower protection law, you have the right to recover the wages you lost during this period. In most cases, the defendant is also responsible for your attorney’s fees.

The government has at least 60 days to investigate your claim. During this time, your name is confidential, protecting you from any repercussions. Many times, the initial 60 days is extended, by court order, for weeks or even months. The court seals the case while the investigation continues, so your employer does not know you made the accusation. In fact, your employer is not even aware of the investigation during this time.

As you don’t talk about the case, you will be safe. But when the investigation ends, your attorney cannot guarantee privacy. Your employer will likely discover you blew the whistle.

FCA Whistleblower Protection Provides You Safety

Congress introduced The False Claims Whistleblower Protection Act in 1989. They created the WPA so government workers could report dishonesty and fraud without fear of losing their job.

The Act also applies to ordinary citizens. In the case of Medicare and Medicaid fraud, often an employee will not report an offense. Instead, the whistleblower will be a neighbor or someone in the community that somehow becomes aware of an infraction. The Act protects these people from harm. When a contractor commits fraud against the government, it affects every citizen. The only way this illegal behavior stops is if ordinary citizens continue to report it.

The government understands there is a greater chance of people reporting fraud when they know they have protection. If you have knowledge of fraud, find out more about the FCA whistleblower protection by contacting the Bothwell Law Group.

Is the Whistleblower Protection Program Similar to the Witness Protection Program?

Posted on December 19, 2016December 18, 2016 by Mike Bothwell

Have you ever thought of the whistleblower protection program as being like the Witness Protection Program? You’ve seen it in the movies: A guy goes to court and spills the beans on the big mob boss. Uncle Sam sets the witness up with a new life. The result is a name change, move across the country, and a whole new identity. The Witness Protection Program is a real thing, and it is quite necessary. The whistleblower protection program is not like Witness Protection — no one disappears. Rather, it makes sure your job is still yours, whether your employer likes it or not.

How Does the Whistleblower Protection Program Work?

The whistleblower protection program protects federal employees who report fraudulent activity within the government agency that employs them. Whistleblower laws have been on the books since the Civil War, but it was only in 1989 that Congress took steps to make sure people don’t need to worry about losing their jobs because they did the right thing.

The whistleblower protection plan is part of the False Claims Act. The False Claims Act, passed during Civil War times, stopped those who were profiting from the war by cheating the government. The initial Act covered governmental supplies, such as horses, guns, and ammunition. Eventually, the Act fell by the wayside, remaining on the books but rarely used.

In 1989, Congress added the WPA (Whistleblower Protection Act) to the previous law. Congress did this as a way to encourage fraud reporting. The WPA protects federal workers from retaliatory actions from their employers; they cannot suffer retaliation for reporting fraudulent activity on the part of their employers.

There are over 20 different statutes involved in the complete Whistleblower Protection Act. These laws are part of the Occupational Safety and Health Association, or OSHA. The OSHA laws protect workers in a wide variety of industries, including:

● Airline
● Commercial motor carrier
● Consumer product
● Environmental
● Financial reform
● Food safety
● Health insurance reform
● Motor vehicle safety
● Nuclear
● Pipeline
● Public transportation agency
● Railroad
● Maritime
● Securities laws

Has the Whistleblower Protection Act Always Been Part of False Claims?

The Whistleblower Protection Act of 1989 brought new protections for federal whistleblowers. The Act also included other legal action. Until 1989, the Act did not include provisions to protect the person who brought forth the fraud charges from retaliation.

When Congress revisited the law, they included the Whistleblower Protection Act. Federal employees who step up and bring fraud to light cannot wind up on the unemployment line because they angered employers by blowing the whistle.

The WPA protects federal employees who disclose information about specific things. These items include wasting money, mismanagement, abuse of authority, or a risk to public health and safety. The act protects against personnel action taken against you as a result of your disclosure. The U.S. Office of Special Counsel has jurisdiction over federal whistleblower retaliation. The WPA addresses federal workers reporting on fraudulent activities within federal agencies. This provision sets the WPA apart from Qui Tam suits covering whistleblowing in other areas.

In 2012, Congress created another action giving more protection to federal employees. It also closed some loopholes the court found in the WPA of 1989. The 2012 legislation is the most recent legislation to focus on whistleblowing.

What Protection Does the Whistleblower Protection Program Offer?

A whistleblower can face a variety of personnel actions as a result of making a claim against a government agency. According to the Whistleblower Protection Act, the following list of actions cannot happen as a result of filing a complaint:

● Promotions
● Appointments to positions
● Any disciplinary action or adverse action
● Reassignment or transfer
● A poor performance evaluation
● Any decision about pay, benefits or awards. (This includes decisions about training or education, if that training or education could lead to an appointment, transfer, promotion or other benefits.)
● Any psychiatric testing or exam
● A non-disclosure agreement that does not notify the employee that the agreement does not override whistleblower rights and protections.
● Any significant change in working conditions, responsibilities or duties

If you believe you have information that falls under the whistleblower protection program, you need guidance from an attorney who knows the specifics of whistleblower law. To make sure you have everything in order and have complete protection, you need to work with a qualified legal team that is familiar with the whistleblower protection program and all areas it covers. Contact the skilled whistleblower protection program attorneys at Bothwell Law Group by calling 770.643.1606 today.