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False Claims Act Whistleblower Retaliation Lawyers

SEC whistleblower lawyersIf you have suffered retaliation for whistleblowing, call our leading False Claims Act whistleblower retaliation lawyers at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

Does the False Claims Act protect whistleblowers against retaliation?

Yes: the False Claims Act (“FCA”) protects employees, contractors, and agents who engage in protected activity from retaliation in the form of their being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment.” 31 U.S.C. § 3730(h)(1).

What is protected whistleblowing or protected conduct under the False Claims Act Retaliation Provision?

The FCA protects:

  1. “lawful acts . . . in furtherance of an action under [the FCA]”; and
  2. “other efforts to stop 1 or more [FCA] violations.” 31 U.S.C. § 3730(h)(1).

Recent cases have interpreted this protected activity to include:

  • internal reporting of fraudulent activity to a supervisor;
  • steps taken in furtherance of a potential or actual qui tam action;
  • efforts to remedy fraudulent activity or to stop an FCA violation; and
  • refusal to violate the False Claims Act.

Does the False Claims Act anti-retaliation law protect efforts to stop a government contractor from defrauding the government?

Yes: the FCA protects whistleblowers who try to prevent one or more violations of the FCA, as long as they have an objectively reasonable belief that their employer is violating, or will soon violate, the FCA. Case law has clarified that efforts to stop an FCA violation are protected even if they are not meant to further a qui tam claim.  For example, refusing to falsify documentation that will be submitted to Medicare is protected.

Is False Claims Act Whistleblower Protection Limited to Disclosures About the Whistleblower’s Employer?

No.  The whistleblower protection provision of the False Claims Act (FCA) protects “lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].”

Recently the Fourth Circuit held in O’Hara v. Nika Technologies, Inc., 2017— F.3d —-2017 WL 6542675 (4th Cir. Dec. 22, 2017):

The plain language of § 3730(h) reveals that the statute does not condition protection on the employment relationship between a whistleblower and the subject of his disclosures. Section 3730(h) protects a whistleblower from retaliation for “lawful acts done … in furtherance of an action under this section.” 31U.S.C. § 3730(h)(1). The phrase “an action under this section” refers to a lawsuit under §3730(b), which in turn states that “[a] person may bring a civil action for a violation of [the FCA].” Id. § 3730(b)(1). Therefore, § 3730(hprotects lawful acts in furtherance of an FCA action. This language indicates that protection under the statute depends on the type of conduct that the whistleblower discloses—i.e., a violation of the FCA—rather than the whistleblower’s relationship to the subject of his disclosures.

Does the False Claims Act retaliation law protect internal reporting to a government contractor or grantee?

Yes: case law has clarified that the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected activity.

Does the False Claims Act prohibit retaliation against an employee for the employee’s refusal to participate in a fraudulent scheme?

Yes.  As the Second Circuit held in Fabula v. American Medical Response, Inc., an employee’s refusal to sign fraudulent reimbursement documentation constitutes protected whistleblowing.  There the court notes that “[t]here is, at best, a hair’s-breadth distinction between complaining internally that a practice is illegal under the FCA and advising a supervisor of one’s refusal to engage in that illegal practice.”

What acts of retaliation are prohibited by the False Claims Act anti-retaliation provision?

The False Claims Act prohibits an employer from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower.  Prohibited retaliation includes:

  • oral or written reprimands;
  • reassignment of duties;
  • constructive discharge; and
  • retaliatory lawsuits against whistleblowers.

What type of constructive discharge is prohibited by the False Claims Act anti-retaliation law?

In Smith v. LHC Group, Inc., 2018 WL 1136072 (March 2, 2018), the Sixth Circuit held that where an employer ignores an employee’s disclosures about fraud on the government and the employee is reasonably concerned that he may be charged with fraud by the government if he remains in the job, the employee’s resignation is an actionable constructive discharge.  In other words, a jury could find that the employer’s alleged fraudulent behavior plus the employee’s moral conscience and reasonable fear of being accused of participating in the employer’s fraud is enough to justify quitting.

What must a whistleblower prove to prevail in a False Claims Act whistleblower retaliation case?

A whistleblowers must prove that:

  1. the whistleblower engaged in protected activity;
  2. the whistleblower’s employer took an adverse employment action against him or her; and
  3. the adverse employment action was taken because of the whistleblower’s protected activity. 31 U.S.C. § 3730(h)(1).
To establish the requisite causal connection, a FCA whistleblower retaliation plaintiff must show that her complaint and her termination were not “wholly unrelated.” Clover v. Total System Svcs., Inc., 176 F.3d 1346, 1354 (III) (B) (11th Cir.1999).  This burden can be met with evidence of very close temporal proximity and evidence that the employer was aware of the protected whistleblowing at the time it made the decision to take an adverse employment action against the plaintiff. Holifield v. Reno, 115 F.3d 1555, 1566 (II) (B) (2) (11th Cir. 1997).
Recently the Third Circuit held that FCA retaliation claims require proof of ‘but-for’ causationDiFiore v. CSL Behring, LLC, 879 F.3d 71, 78 (3d Cir. 2018).  Note, however, that “but for” caution is not tantamount to sole factor causation.  See Burrage v. United States, 134 S. Ct. 881, 888-89 (2014) (an act is a “but-for” cause “[even if it] combines with other factors to produce the result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back.”).

And arguably, “but-for” causation is not significantly more onerous than “motivating factor” causation.  For example, the Second Circuit held in a post-Nassar Title VII retaliation case that the “but-for causation standard does not alter the plaintiff’s ability to demonstrate causation at the prima facie stage on summary judgment or at trial indirectly through temporal proximity.”  Zann Kwan v. Andalex Group, 737 F.3d 834 (2d Cir. 2013) (three-week period from Kwan’s protected activity to the termination of her employment is sufficiently short to make a prima facie showing of causation indirectly through temporal proximity).

What remedies or damages can a whistleblower recover under the whistleblower-protection provision of the False Claims Act?

A whistleblower who prevails in an anti-retaliation action under the FCA may recover:

  • reinstatement;
  • double back pay, plus interest;
  • special damages, which include litigation costs, reasonable attorney’s fees, emotional distress, and other noneconomic harm from the retaliation. 31 U.S.C. § 3730(h)(2).

Recently, a jury awarded more than $2M to a whistleblower in a FCA retaliation case.  As there is no cap on compensatory damages, FCA retaliation plaintiffs can potentially recover substantial damages for the retaliation that they have suffered.

What is the statute of limitations for a False Claims Act Whistleblower Retaliation Case?

The statute of limitations for FCA retaliation claims is three years from the date on which the retaliation occurred.  FCA retaliation claims can be brought directly in federal court; there is no administrative exhaustion requirement.

Does the NDAA Whistleblower Protection Law Provide Additional Protection for Whistleblowers at Government Contractors and Grantees?

Yes, the NDAA whistleblower protection provisions provide a private right of action to an employee who suffers retaliation for disclosing information that the employee reasonably believes is evidence of:

  • gross mismanagement of a Federal contract or grant;
  • a gross waste of Federal funds;
  • an abuse of authority  relating to a Federal contract or grant; or
  • a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To learn more about NDAA whistleblower protection, see our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.

False Claims Act Whistleblower Retaliation Developments

False Claims Act Whistleblower Provision Protects Refusal to Violate False Claims Act

False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection

False Claims Act Whistleblower Obtains Favorable Rule on Double Back Pay

Does the False Claims Act protect whistleblowing in the course of the whistleblower’s job duties?

Third Circuit False Claims Act Retaliation Decision May Spur an Increase in NDAA Retaliation Claims

False Claims Act Retaliation Law Protects Efforts to Stop an FCA Violation

Decision in False Claims Act Whistleblower Retaliation Case Highlights Broad Scope of False Claims Act Protected Conduct

What whistleblowing is protected under the False Claims Act anti-retaliation provision?

Experienced False Claims Act Whistleblower Retaliation Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees.  In 2017, Washingtonian named two of our attorneys top whistleblower lawyers.  To schedule a free confidential consultation, click here or call us at 202-262-8959.

Our experience includes:

  • Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
  • Litigating False Claims Act retaliation cases.
  • Representing qui tam relators in False Claims Act cases.
  • Representing whistleblowers disclosing fraud on the government in Congressional investigations.
  • Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon.  Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

  • Recently Washingtonian magazine named Jason Zuckerman and Eric Bachman top whistleblower lawyers.
  • U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area
  • Bachman and Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
  • Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.  As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowersinvestigate and disclose complex financial frauds to the government and obtain damages for retaliation.  He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
  • Eric Bachman has substantial experience litigating precedent-setting employment cases.  His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.
  • Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law.  He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

False Claims Act Whistleblower Retaliation Lawyer Client Review

The following client review is from a former senior official at a government contractor:

“I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit. Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation.”

Whistleblower Retaliation Laws Protecting Employees of Federal Contractors

Resources About False Claims Act Anti-Retaliation/Whistleblower Protection Provision

We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

 

 

Yes, the False Claims Act prevents reprisal against an employee who has engaged in either of two areas of protected activity. One, did the employee take acts in furtherance of a qui tam action? The employee need not bring a qui tam action in the False Claims Act, but did they make an effort to try to collect evidence, or to perform an investigation of a possible violation of false claims act?
The other area is did the employee try to stop a violation of False Claims Act? Did they try to halt some fraud against the US government. The key is, the employee need not bring an action under the qui tam provisions, but if the employee has a reasonable belief that there is fraud on the US government and expresses that concern, that is enough for a claim under the False Claims Act, anti-retaliation provision.