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.
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:
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.
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:
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.
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.
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.
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.
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.
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.
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:
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.
We have successfully represented clients in whistleblower claims and litigation in districts across the United States. Our firm has offices in Atlanta GA, Brunswick GA, Alexandria VA, and Washington DC, and we frequently travel to other cities and states to help whistleblowers file claims and recover rewards. Contact our firm and we will let you know if we can help. If we are not the best firm for your case, we will let you know what lawyer or law firm would be right for your case and we will refer you to them at no additional cost to you.
Page Pate and his partner Jess Johnson are top notch! Both are brilliant attorneys with incredible integrity. Page represented me in a successful 5 year long Whistleblower False Claims Act Case. Despite his busy schedule and prestigious reputation as one of the best Federal Trial Lawyers in the US, Page was unbelievably polite, respectful and took the time to listen, explain the process in its entirety and answer any questions. Page saw the potential of my case where the others didn’t. He and Jess worked very long hours preparing the claim, researching, making phone calls and attending meetings with me to assist the DOJ. I am still thanking God every day for Page Pate and Jess Johnson and their belief in me and their ability to make a $25M case out of what other expert Qui Tam attorneys saw as impossible.