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Whistleblower Retaliation

Whistleblower laws don’t work unless whistleblowers have the courage to come forward and report fraud. To encourage employees to blow the whistle on employers, federal law protects many different types of whistleblowers from retaliation, including those who blow the whistle under the False Claims Act (FCA). An employee who is fired, demoted, or otherwise retaliated against for reporting fraud under the FCA can file a lawsuit against their employer and recover significant damages.

 

Does the False Claims Act cover whistleblower retaliation?

Yes, the False Claims Act has a special provision which protects whistleblowers from retaliation.
Specifically, 31 U.S.C. § 3730(h) protects employees in two situations:

  1. “lawful acts done by the employee… in furtherance of an action under [the FCA]…”
  2. “other efforts to stop 1 or more [FCA] violations…”

In other words, whistleblowers are generally protected after they file a lawsuit under the False Claims Act or when they try to stop a False Claims Act violation. It is important to note that these protected activities also extend to contractors and agents of an employer and not just employees.

The second category (trying to stop an FCA violation) can be tricky to prove when no lawsuit has been filed. For example, if an employee has no written documentation showing that he took some action to prevent a violation of the False Claims Act before being fired, he may find it difficult to sue his employer for wrongful retaliation. For this reason, an employee who wants to blow the whistle on their employer’s fraud should contact an experienced False Claims Act attorney as soon as possible. A whistleblower attorney can map out a path to ensure that federal law fully protects the employee from retaliation.

What actions are considered to be retaliation against whistleblowers?

Whistleblower retaliation can come in many different forms. The most common types of retaliation that are prohibited under the False Claims Act, include the following:

  • Discharge/Termination
  • Demotion
  • Suspension
  • Reprimand
  • Reassignment of duties
  • Threats
  • Harassment
  • Reduction in pay
  • Loss of a promotion

If you aren’t sure if your employer has retaliated against you for trying to prevent fraud, you should contact an experienced False Claims Act attorney to determine if you are protected under federal law.

What do I need to prove to win a whistleblower retaliation case?

You generally have to be able to prove three things to win a retaliation case under the False Claims Act: 1) you engaged in a protected activity; 2) your employer knew about the protected activity; and 3) your employer retaliated against you in response to the protected activity.

For example, if your employer fired you because you internally reported fraud against the U.S. government to a supervisor, you likely have a strong retaliation case. Of course, every case is fact specific, and you should consult with an experienced False Claims Act attorney to determine if you have a strong retaliation case.

Do I have to prove that my employer defrauded the U.S. government?

No, you do not have to prove that your employer actually committed fraud against the U.S. government to succeed in a retaliation case. An employee, however, has to be able to show that there was some reasonable basis to believe that the False Claims Act was being violated. Some courts have held that an employee must be able to show that he or she had an “objectively reasonable belief” that they were attempting to prevent a false claim from being sent to the U.S. government. The exact standard will likely depend on the jurisdiction that you are in, and you should consult with an experienced False Claims Act attorney to determine if you have a strong retaliation case.

How much money can I get if my employer retaliates against me?

If you are retaliated against for blowing the whistle on your employer, you are entitled to two times the amount of backpay (which is the wages you would have been paid if there had been no retaliation) plus interest. Federal law also allows you to recover special damages that were caused by the retaliation. Special damages can include emotional distress, litigation costs, and attorney’s fees.

When an employee has been fired as the result of retaliation, the False Claims Act also requires that the whistleblower be reinstated “with the same seniority status.” In some cases, reinstatement is not a great solution due to hostility and distrust that has developed between the whistleblower and the employer, and it may be possible to obtain front pay or lost future earnings instead of reinstatement. Front pay is designed to provide an employee with funds for a period of time until the employee can find similar employment elsewhere.

Is there a statute of limitation for bringing a whistleblower retaliation claim?

There is a three-year statute of limitation for retaliation claims under the False Claims Act. This means that you must file a lawsuit within three years of the date when the retaliation occurred.

How do I bring a retaliation claim under the False Claims Act?

Retaliation claims are typically brought as part of a lawsuit for False Claims Act violations. This means that retaliation claims are usually filed under seal along with claims that a company defrauded the U.S. government. In the event that the allegations of fraud fail to be successful, a whistleblower may still be able to pursue a claim for retaliation.

It is important to note that fraud claims under the False Claims Act are brought on behalf of the U.S. government, but retaliation claims belong to the whistleblower. Because of this, a retaliation claim may be brought separately by the whistleblower, and in some cases, it may be preferable to file a retaliation claim on its own. For example, if the fraud claims cannot be proven, it may be preferable to file a lawsuit with only retaliation claims.

What should I do if my employer has retaliated against me?

If you feel that your employer has retaliated against you for blowing the whistle, you may be able to sue your employer under the False Claims Act. If you have already filed a lawsuit under the False Claims Act, you should immediately consult with your attorney to determine if you need to add or supplement a claim for wrongful retaliation. Your attorney will also likely let the government know about the retaliation, because evidence of retaliation could dramatically increase the value of your False Claims Act case.

If you have not filed a lawsuit under the False Claims Act, you should contact an experienced False Claims Act attorney immediately. An attorney can assess whether you should file a False Claims Act lawsuit against your employer and whether you also have a strong retaliation claim. To support a retaliation claim, your attorney will likely want you to do the following:

  1. Gather documents and evidence showing fraud: While you don’t have to prove actual fraud for a retaliation claim, the strongest retaliation cases usually involve actual fraud, and at the very least, you will need to adequately explain why you thought fraud was being committed. Any documentation or evidence showing the suspected fraud will be helpful in establishing that you were retaliated against.
  2. Gather documents showing you reported the fraud: To have a strong retaliation case, you need to be able to document that you tried to prevent a violation of the False Claims Act. This means that there should be a record of the steps you took (e.g., email, letter, written complaint, or correspondence of some kind). If you only orally report fraud to a supervisor, you run the risk of that supervisor simply denying that you said anything.
  3. Gather documents or evidence showing the company’s response: When confronted with allegations of fraud, an employer may act unpredictably. Be sure to keep any response by the employer (e.g., email, text message, letter, etc.). If a supervisor says anything to you about reporting the fraud, write down the date, time, place, and substance of the conversation.

Recent updates in FCA whistleblower retaliation cases

Most retaliation claims continue to be resolved when an offending company settles allegations that it defrauded the government. In one recent case, however, a whistleblower went to trial on just her allegations of retaliation and was awarded $5.8 million by a jury. The employee, a former sales rep at Biogen, claimed that she had been retaliated against for internally blowing the whistle on the off-label promotion of a pharmaceutical drug. The jury agreed with the employee and sent Biogen a message that such conduct would not be tolerated. While the judge ultimately reduced the award to $2.5 million, the Biogen case makes clear that retaliation claims can result in substantial damages. The case is a also helpful guide in litigating other retaliation cases.

In our experience, companies are likely to contest claims of retaliation when these claims are brought on their own. When retaliation claims are brought in conjunction with claims of fraud, however, a company is more likely to settle the retaliation claim along with the fraud claim. This has the effect of increasing the amount of settlements in FCA cases. For this reason, a whistleblower should always add a claim for retaliation in an FCA lawsuit where there is some evidence of retaliation or when there is a good-faith belief that the employer will likely retaliate. And, as mentioned above, a whistleblower can still pursue a retaliation claim even if the fraud allegations are not successful.