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The Anti-Retaliation Provisions Of The False Claims Act

The Anti-Retaliation Provisions of The False Claims Act

The decision to blow the whistle is a scary one, especially when the person blows the whistle on his/her employer. A person’s career, financial security, reputation and sometimes personal safety can be at risk. This is true whether or not the person worked for the company that is the subject of a potential whistleblower (or “qui tam”) action.

Recognizing the risks, Congress amended the False Claims Act (the “Act”) in 1986 by adding employment protections to stop employers from using the threat of retaliation to keep whistleblowers quiet, and to assure those considering exposing fraud that they are legally protected from retaliatory acts. The protections extend to the whistleblower, anyone assisting the whistleblower, and anyone working with the government “in furtherance of” an action under the Act.

Under the Act, any employee who is discharged, suspended, demoted, harassed, or otherwise discriminated against because he/she lawfully reported a violation of the Act is entitled to all relief necessary to make the employee whole. Such relief may include reinstatement with the same seniority status, double back pay, and compensation for any special damages sustained as a result of the retaliation, including litigation costs and reasonable attorneys’ fees.

To establish a claim for retaliation, the whistleblower must engage in conduct protected by the Act. The courts require a showing that the defendant have some notice of the protected conduct that the whistleblower was either taking action in furtherance of a qui tam action, or assisting in an investigation or actions brought by the government. The protection against retaliation extends to whistleblowers whose allegations could support a qui tam action even if the case is never filed. Finally, the whistleblower must show that the discharge, suspension, demotion, harassment or threat was in retaliation for the protected activities. A claim of retaliation can be based upon the whistleblower claims and other violations of state and federal law, and may be brought in federal court.

Not Every Employee Is Protected By The False Claims Act

The Act does not protect federal employees who have been retaliated against for whistleblowing. Such employees are protected by the Civil Service Reform Act of 1978, as amended (the “CSRA”). The CSRA is the sole statutory source of relief for federal employees seeking to remedy retaliatory misconduct.

State employees are not protected by the anti-retaliation provisions of the Act. Under the Eleventh Amendment, the states are immune from lawsuits for money damages or equitable relief without their consent. Only Congress can eliminate that immunity using clear and unambiguous language. The Act is silent on the issue. Thus, the courts have barred retaliation lawsuits based on the Eleventh Amendment. The United States Supreme Court has also held that states are not “persons” subject to suit within the meaning of the Act.

Employees responsible for investigating fraud, such as compliance officers, do not enjoy the same anti-retaliation protections as other employees under the Act. The reason: these employees are obligated to root out fraud and report the misconduct through internal channels. Consequently, these employees are required to show more than mere employer knowledge. The employee must show, among other things, that he/she threatened the employer with a qui tam action or government investigation.

Talk To An Attorney

The law protects and encourages employees and others to expose fraud against the government. If you are an employee, contractor or agent who is considering filing, or already has filed, a qui tam action, seek the counsel of an experienced attorney. Contact Freiberger Haber LLP to learn about your rights and how to protect them.

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