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?
The FCA protects:
- “lawful acts . . . in furtherance of an action under [the FCA]”; and
- “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;
- claims where the subject of the plaintiff’s disclosures would not necessarily have supported a full qui tam action;
- steps taken in furtherance of a potential or actual qui tam action; and
- steps taken to remedy fraudulent activity or to stop an FCA violation.
Does the False Claims Act protect efforts to stop fraud?
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 an FCA claim.
Does the False Claims Act protect internal reporting?
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.
What must a whistleblower prove to prevail in a FCA retaliation claim?
A whistleblowers must prove that:
- the whistleblower engaged in protected activity;
- the whistleblower’s employer took an adverse employment action against him or her; and
- the adverse employment action was taken because of the whistleblower’s protected activity. 31 U.S.C. § 3730(h)(1).
“A contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision. This element is broad and forgiving, and this test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a ‘significant,’ ‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel action in order to overturn that action. Temporal proximity between the protected activity and the adverse action is a significant factor in considering a circumstantial showing of causation, the causal connection may be severed by the passage of a significant amount of time, or by some legitimate intervening event.” Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 344 (4th Cir. 2014)
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:
- 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.
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.