False Claims Act Whistleblower Retaliation Lawyers
If 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. 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.
We can advise you about your options and devise a strategy to maximize your recovery.
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).
The False Claims Act also authorizes substantial awards to qui tam relators (whistleblowers) for bringing and prosecuting cases concerning fraud on the government. Click here to learn more about the qui tam provisions of the False Claims Act.
Who is protected under the False Claims Act whistleblower protection law?
False Claims Act whistleblower protection extends not only to employees and contractors, but also to partners. See U.S. ex rel. Kraemer v. United Dairies, L.L.P., 2019 WL 2233053 (D. Minn. May 23, 2019); Munson Hardisty, LLC v. Legacy Point Apartments, LLC, 359 F. Supp. 3d 546, 558 (E.D. Tenn. 2019) (LLC that was general contractor on defendant’s construction project was proper FCA plaintiff). In addition, the False Claims Act whistleblower protection law extends to physicians with staff privileges at a hospital. Powers v. Peoples Cmty. Hosp. Auth., 455 N.W.2d 371, 374 (Mich. Ct. App. 1990); El-Khalil v. Oakwood Healthcare, Inc., No. 19-12822, E.D. Mich. April 20, 2020.
What acts of retaliation are prohibited by the False Claims Act anti-retaliation law?
The False Claims Act whistleblower protection law 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;
- demotion; and
- retaliatory lawsuits against whistleblowers.
What remedies or damages can a whistleblower recover under the anti-retaliation provision of the False Claims Act?
A whistleblower who prevails in a False Claims Act retaliation case under the FCA may recover:
- double back pay, plus interest;
- special damages, which include litigation costs, reasonable attorney’s fees, emotional distress, and other non-economic harm from the retaliation. 31 U.S.C. § 3730(h)(2).
At least three federal appellate courts have held that emotional distress damages caused by an employer’s retaliatory conduct are authorized under § 3730(h). Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir. 2000); Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999); see also Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 672 (4th Cir. 2015) (“Every federal circuit court to have addressed the issue has concluded that the False Claims Act ‘affords noneconomic compensatory damages.’ ”).
Recently, a jury awarded more than $2.5 million to a whistleblower in an 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.
And in 2020, two cardiologists formerly employed by Tenet Healthcare Corporation recovered $11 million in compensatory damages in an arbitration of claims of FCA retaliation, tortious interference with business expectancies, false light, and breach of contract.
A False Claims Act whistleblower protection attorney can help you assess whether you may have claims under other whistleblower protection or whistleblower rewards laws and develop a strategy to maximize your recovery.
False Claims Act Whistleblower Retaliation Damages and Remedies
What is protected whistleblowing or protected conduct under the False Claims Act Retaliation Law?
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;
- steps taken in furtherance of a potential or actual qui tam action; or
- efforts to remedy fraudulent activity or to stop an FCA violation.
FCA whistleblower protection attaches regardless of whether the whistleblower mentions the words “fraud” or “illegal.” The employer need only be put on notice that litigation is a “reasonable possibility.” A reasonableness standard is inherently flexible and dependent on the circumstances; thus, “no magic words—such as illegal or unlawful—are necessary to place the employer on notice of protected activity.” Jamison v. Fluor Fed. Sols., LLC, 2017 WL 3215289, at *9 (N.D. Tex. July 28, 2017).
An FCA retaliation claim does not require proof of a viable underlying FCA claim. The FCA anti-retaliation provisions “do not require the plaintiff to have developed a winning qui tam action”; they “only require  that the plaintiff engage in acts [made] in furtherance of an [FCA] action.” Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 187 (3d Cir. 2001).
And because the Supreme Court has held that the FCA “is intended to reach all types of fraud, without qualification, that might result in financial loss to the Government” and “reaches beyond ‘claims’ which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money,” the term “false or fraudulent claim” should be construed broadly. U.S. ex rel. Drescher v. Highmark, Inc., 305 F. Supp. 2d 451, 457 (E.D. Pa. 2004).
Does the False Claims Act anti-retaliation law protect efforts to stop a government contractor from defrauding the government?
Yes: the False Claims Act anti-retaliation law 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. This prong of FCA protected conduct requires facts that support a reasonable inference that the whistleblower believed that their employer was violating the FCA, that their belief was reasonable, that they registered their complaints based on that belief, and that their complaints were designed to stop one or more violations of 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.
Similarly, a South Carolina district judge held that a relator engaged in protected conduct when she refused her employer’s directive to obtain patient signatures and back-date the signatures, which the relator perceived as an attempt to create fraudulent forms used to secure reimbursement from US health insurance programs.
The second prong (“other efforts to stop FCA violation”) is subject to an “objective reasonableness” standard, which requires only that an employee’s actions be “motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the FCA.” United States ex rel. Grant v. United Airlines Inc., 912 F.3d 190, 200 (4th Cir. 2018).
Is False Claims Act Whistleblower Protection Limited to Disclosures About the Whistleblower’s Employer?
As the Fourth Circuit held in O’Hara v. Nika Technologies, Inc., 2017— F.3d —-2017 WL 6542675 (4th Cir. Dec. 22, 2017), an FCA retaliation plaintiff need not demonstrate their protected disclosure concerns fraud committed by their employer:
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(h) protects 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 anti-retaliation law protect internal reporting to a government contractor or grantee?
Yes, 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 types of disclosures or whistleblowing are protected under the False Claims Act whistleblower protection law?
Examples of protected conduct under the False Claims Act include:
- Opposing double-billing of Medicare or Medicaid;
- Reporting the sale of defective products to the government;
- Filing or prosecuting a qui tam action;
- Refusing to follow an order to upcode;
- Assisting a qui tam relator, e.g., cooperating in an investigation;
- Reporting the payment of kickbacks to refer patients for services that will be reimbursed by Medicare;
- Oppose the fraudulent inducement of a contract;
- Disclosing bid-rigging;
- Reporting violations of good manufacturing practices; or
- Trying to stop a provider from billing Medicaid for unnecessary medical services.
Does the False Claims Act prohibit harassing a whistleblower?
A decision denying summary judgment in Baldwin v. Corecivic of Tennessee, LLC, No. 18-2390-JWB, 2020 WL 1952521 ( D. Kansas April 23, 2020) illustrates how harassment or a hostile work environment can be actionable retaliation under the FCA. The link between the alleged harassment and the whistleblower’s complaint to a federal agency was made explicit in remarks addressed to the workforce by management that raise a reasonable inference of a retaliatory motive.
[S]oon after filing his DOL complaint, the Warden called him into his office, asked him what he thought he was doing, accused him of being like a litigious Walmart shopper, and told him he had “big balls” for making the complaint, and that nothing was going to change. The Warden then expressed his dissatisfaction with Plaintiff at a company-wide meeting, where he told Plaintiff’s coworkers that the prison might be shut down if Plaintiff kept up his complaining. His coworkers began to call him names after this public dressing-down. Plaintiff was assigned to the allegedly undesirable position of patrolling the prison’s exterior perimeter, with no breaks during his 12-hour shift and no relief. The prison’s training manager, Sandra Elliott, instructed new employees to avoid Plaintiff because he was a trouble-maker and incorporated his photo into her introductory PowerPoint presentation. Plaintiff finds further evidence of intentional retaliation because Defendant’s managers failed to refer his various grievances, most of which stated that the complained-of mistreatment was in retribution for his DOL complaint, up the management chain to the company’s investigative team. Later, according to Plaintiff, his identity was leaked in connection with his confidential report of employee theft, resulting in a campaign of harassment presumably from his coworkers, who, among other things, let the air out of his car tires repeatedly, made prank phone calls to his home, threatened him, told him to stay away from the company holiday party for his own safety, put a dead mouse on his car windshield, and possibly even talked to an inmate about “shanking” him.
Is constructive discharge prohibited by the False Claims Act anti-retaliation law?
Yes. 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. See also Byrd v. Nat’l Health Corp., No. 3:18-CV-00123, 2019 WL 403964 (E.D. Tenn. Jan. 31, 2019) and Bourne v. Provider Servs. Holdings, LLC, No. 1:12-CV-935, 2019 WL 2010596, at *6 (S.D. Ohio May 7, 2019).
What must a whistleblower prove to prevail in a FCA whistleblower retaliation case?
A whistleblower 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).
Title VII’s “because of ” test incorporates the “‘simple'” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360, 133 S. Ct. 2517, 186 L. Ed. 2d 503. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
“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) (a 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).
“But for” causation requires a plaintiff to prove the adverse employment action would not have occurred but for the defendant’s consideration of a protected activity and “sole factor” causation requires a plaintiff to prove that the defendant’s consideration of a protected activity was the only cause of an adverse employment action. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n. 10 (1976).
As discussed in Robert Mantel’s article Pretext After Bostock—Disproving One of the Employer’s Reasons is Enough,” when a plaintiff can show that discrimination was one of the determinative reasons for an adverse employment action, there is no longer a need to disprove the other reasons.”
How can an FCA whistleblower retaliation plaintiff prove notice of protected conduct?
“Notice may be provided in a number of ways: for example, by informing the employer of `illegal activities’ that would constitute fraud on the United States, . . . by warning the employer of regulatory noncompliance and false reporting of information to a government agency, . . . or by explicitly informing the employer of an FCA violation.” McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 704 (10th Cir. 2012).
Where an employee is hired to track compliance with regulatory requirements, some courts apply a presumption that he was merely acting in accordance with his employment obligations. In other words, a compliance employee must plead that he was not just doing his job. Some of the factors that courts consider in assessing notice include: whether the plaintiff’s complaints led to internal or external investigations; whether the plaintiff used the words, “illegal,” “unlawful,” “qui tam,” “fraud” or “fraudulent” in characterizing his concerns regarding the charges; whether the plaintiff’s “regular job duties” involved “investigating and reporting fraud” or, similarly, whether the plaintiff uncovered the alleged fraud through his performance of specifically “assigned task[s]”; and whether the plaintiff can rebut evidence that his supervisors had no knowledge of the protected activity. Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 189-92 (3d Cir. 2001).
WHAT must compliance employees allege to establish notice?
Broadly speaking, “notice can be accomplished . . . by any action [that] a factfinder could conclude would put the employer on notice that litigation is a reasonable possibility[,]” Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 868 (4th Cir. 1999) (alterations added); or, post-amendments, by any action that would make an employer aware of the plaintiff’s efforts to stop violations of the False Claims Act, see 31 U.S.C. § 3730(h)(1).
More concretely, a compliance professional might establish notice “by expressly stating an intention to bring a qui tam suit,” Eberhardt, 167 F.3d at 868; “characterizing the employer’s conduct as illegal or fraudulent[,]” id. (alteration added); “recommending that legal counsel become involved[,]” id. (alteration added); “act[ing] outside his normal job responsibilities[,]” Williams, 389 F.3d at 1261 (alterations added; citation omitted; or “alert[ing] a party outside the usual chain of command[,]” id. (alterations added; citation omitted). A compliance employee need not “incant talismanic words to satisfy the notice element,” id. (citations omitted), but if the employee is the source of the employer’s notice, he must do more than “[m]erely grumble . . . about job dissatisfaction or regulatory violations” or report mischarging the government to a supervisor, Yesudian, 153 F.3d at 744 (alterations added); see Eberhardt, 167 F.3d at 868 (citations omitted).
Lord v. Univ. of Miami, 571 F. Supp. 3d 1299, 1313-14 (S.D. Fla. 2021).
Is there a heightened notice requirement for a False Claims Act whistleblower to prove that she went beyond her job duties when she blew the whistle?
Some courts reject a heightened notice requirement. “[T]he FCA no longer requires that conduct be in furtherance of an action under this section to be protected. Rather, the FCA protects any effort to stop 1 or more violations of this subsection. 31 U.S.C. 3730(h)(1). . . . If an employee does not need to take steps clearly in furtherance of a potential or actual qui tam action to engage in protected activity, the employee, even if charged with investigating potential fraud, also does not need to make clear their intentions of bringing or assisting in an FCA action, Yuhasz, 341 F.3d at 568, to satisfy the notice requirement. . . . By reporting [his/]her concerns directly to [his/her supervisor], [a] Plaintiff satisfie[s] the notice element of [his/]her . . . case.” Mikhaeil v. Walgreens Inc., No. 2:13-CV-14107, 2015 WL 778179, at *9 (E.D. Mich. Feb. 24, 2015) (italics and emphasis added). See also Are “duty speech” disclosures protected under the False Claims Act?
What is the statute of limitations for a False Claims Act Whistleblower Retaliation Claim?
The statute of limitations for False Claims Act 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.
The Sixth Circuit held in El-Khalil v. Oakwood Healthcare, Inc., 2022 WL 92565 (6th Cir. Jan 10, 2022) that the statute of limitations period for a False Claims Act whistleblower retaliation case commences when the whistleblower is first informed of the retaliatory adverse employment action. For more information about that decision, see Sixth Circuit Clarifies When Statute of Limitations Commences in False Claims Act Whistleblower Retaliation Cases.
Does the False Claims Act whistleblower retaliation law authorize individual liability?
With some exceptions, e.g., Weihua Huang v. Rector and Visitors of University of Virginia, 896 F. Supp. 2d 524, 548 n.16 (W.D. Va. 2012), most courts addressing this issue have held that § 3730(h) does not create a cause of action against supervisors sued in their individual capacities.” Brach v. Conflict Kinetics Corp., 221 F. Supp. 3d 743, 748 (E.D. Va. 2016) (footnotes omitted) (citing Howell v. Town of Ball, 827 F.3d 515, 529-30 (5th Cir. 2016)). But arguably a False Claims Act retaliation claim can be brought against an individual as an alter ego of an employer corporation. United States ex rel. Brumfield v. Narco Freedom, Inc., No. 12 Civ. 3674 (JGK), 2018 WL 5817379, at *3 (S.D.N.Y. 2018) (citing cases).
Is a disclosure about fraudulent inducement of a contract protected under the FCA retaliation law?
Yes. FCA protected conduct (protected whistleblowing) includes “efforts to stop 1 or more violations’ of the Act,” which goes beyond disclosures concerning an actual exchange of money or property. See U.S. ex rel. Bahrani v. Conagra, 465 F.3d 1189, 1194 (10th Cir. 2006) (noting that the United States Supreme Court has given the FCA “an expansive reading, observing that it covers all fraudulent attempts to cause the government to pay out sums of money”) (internal citation omitted and quotation marks omitted). A company that provides false information in the course of competing for or seeking a government contract or grant arguably violates the FCA where the false statement has “a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”
Does the False Claims Act Prohibit the Waiver or Release of False Claims Act Retaliation Claims?
The FCA does not preclude the waiver of a retaliation claim. See Brown v. City of S. Burlington, 393 F.3d 337, 346 (2d Cir. 2004). In contrast, a qui tam action cannot be dismissed without the written consent of the court and the Attorney General. Under the FCA, a relator may not unilaterally enter into an enforceable settlement agreement or release after filing an FCA action. 31 U.S.C. § 3730(b)(1).
Courts generally enforce a pre-filing release of a relator’s right to bring a qui tam action so long as the relator’s allegations of fraud were sufficiently disclosed to the government prior to the release, and the government had the opportunity to fully investigate the allegations. In most circuits, a prefiling release is unenforceable as a matter of public policy where the government did not have sufficient knowledge of the fraud allegations at the time the release was executed. Judge Mazzant’s recent decision in Mitchell v. CIT Bank, No. 4:14-CV-00833, 2021 WL 3634012 (E.D. Tex. Aug 17, 2021) surveys the key cases on this topic.
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.
Note that a recent district court ruling in Reed v. Keypoint Government Solutions, which might be erroneous, holds that an NDAA whistleblower retaliation claim must be brought in court within 2 years of the 210th day after the filing of the claim at the OIG.
The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:
|False Claims Act Whistleblower Protection||NDAA/Defense Contractor Whistleblower Protection Act|
|Coverage||Employee, contractor, or agent of federal contractor||Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor|
|Scope of Protected Conduct (protected whistleblowing)||Protects lawful acts done by the employee, contractor, agent, or associated others (1) in furtherance of an action under the FCA or (2) other efforts to stop 1 or more violations||Protects disclosures to employer or the government concerning:
-Violation of law, rule, or regulation related to a federal contract
-Gross mismanagement of a federal contract or grant
-Gross waste of federal funds
-Abuse of authority relating to a federal contract or grant
-Substantial and specific danger to public health or safety
|Administrative Exhaustion||No exhaustion requirement; file directly in federal court||Must file initially at OIG and after 210 days, can remove claim to federal court|
|Causation Standard||"But for" causation||Contributing factor causation|
|Damages||Double back pay, reinstatement, uncapped special damages (emotional distress and harm to reputation), attorney’s fees||Back pay, reinstatement, uncapped special damages, attorney’s fees|
|Statute of Limitations||3 years||3 years|
Can a Government Contractor Bring a False Claims Act Whistleblower Retaliation Claim?
Yes, in certain circumstances. Recently a Tennessee federal judge held in Munson Hardisty LLC v. Legacy Pointe Apartments that the False Claims Act’s anti-retaliation provision protects a general contractor on a construction project funded by the U.S. Department of Housing and Urban Development (HUD) from retaliation for opposing fraudulent misrepresentations to HUD. Read more about the decision here.
Can a Government Contractor Obtain Dismissal of a False Claims Act Claim to Maintain the Confidential Nature of Classified Information?
A False Claims Act qui tam complaint should not include classified information and any relator in the possession of classified information should seek guidance to avoid disclosing such information. But where a qui tam action might implicate sensitive information, the contractor is not entitled to step into the shoes of the Government to assert the Government’s interest in maintaining the confidential nature of the information. Johnson et al v. Raytheon Company, No. 3:17-CV-1098-D, 2019 WL 6914967 N.D. Texas 12/19/2019.
Does the Layoff of a Whistleblower Immunize a Company from Liability Under the False Claims Act Retaliation Law?
A judge denied summary in an FCA retaliation case where the whistleblower was included in a layoff just one month after the FBI executed its search warrant with the whistleblower’s assistance and the employer knew about the whistleblower’s participation in the FBI’s investigation. UNITED STATES EX REL. BARRICK v. PARKER-MIGLIORINI INTERNATIONAL, LLC, Case No. 2:12-cv-381-DB (D. Utah 2020). In particular, the employer knew that the whistleblower provided documents to the FBI and the whistleblower refused to participate in an interview with the company without his attorney present.
Does the False Claims Act Whistleblower Protection Law Preempt Common Law Wrongful Discharge Claims?
A number of courts have rejected the argument that state wrongful discharge claims are preempted by the False Claims Act. See, e.g., Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 945 (7th Cir. 2002) (“There is nothing in § 3730(h) to lead us to believe that Congress intended to preempt all state law retaliatory discharge claims based on allegations of fraud on the government.”); Boone v. MountainMade Foundation, 857 F.Supp.2d 111, 113 n.2 (D.D.C. 2012); Glynn v. EDO Corp., 536 F.Supp.2d 595, 608-09 (D.Md. 2008); Hoefer v. Fluor Daniel, Inc., 92 F.Supp.2d 1055, 1059 (C.D.Cal. 2000); Palladino ex rel. United States v. VNA of S.N.J., Inc., 68 F.Supp.2d 455, 465-74 (D.N.J. 1999).
Is an employee required to invoke the FCA or reference fraud on the government in order to engage in protected conduct?
Generally no. For example, in Mason v. Netcom Technologies, Judge Grimm held that an employee’s inquiry to management about the employer’s failure to pay the prevailing wage for government contract work and his complaint to the Department of Labor constituted FCA-protected conduct. Netcom Technologies argued that Mason asking his employer about the prevailing wage rate requirement and complaining to the DOL were not protected activities because he did not raise any issue of fraud or illegality. In other words, generalized concerns about perceived contract or regulatory violations are not protected under the FCA. Judge Grimm held that Mason has pleaded sufficient facts to suggest that Netcom “knew or should have known that FCA litigation was a reasonable possibility,” once it became aware of the DOL complaint/investigation and Mr. Mason’s involvement. Once Netcom was subject to a DOL investigation that it was underpaying employees as part of a government contract, it should have been on notice of possible FCA litigation with respect to the Netcom’s potential alleged fraud in connection with that underpayment.
False Claims Act Whistleblower Retaliation Developments
Experienced False Claims Act Whistleblower Retaliation Lawyers
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.
- 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
- Dallas Hammer has extensive experience representing whistleblowers in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
- Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases. He 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 protection laws. Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
- Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
- We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
- Our attorneys have been quoted by and published articles in leading business, accounting, and legal periodicals, including The Wall Street Journal, Forbes, CNBC, MarketWatch, Vox, Accounting Today, Going Concern, Law360 – Expert Analysis, Investopedia, The National Law Review, inSecurities, Government Accountability Project, S&P Global Market Intelligence, Risk & Compliance Magazine, The D&O Diary, The Compliance and Ethics Blog, Compliance Week and other printed and electronic media.
False Claims Act Whistleblower Retaliation Lawyer Client Reviews
The following client reviews are from whistleblowers at government contractors:
“I hired Mr. Zuckerman to pursue an action against a former employer that was attempting to use deceit in its pursuit of federal contracts, and which fired me for not participating in its schemes. Jason was not just very responsive, he was also engaging, spending a good deal of time and effort with me on the phone and by email learning the ins and outs of the case, discussing strategy, laying out alternatives, anticipating counter-arguments, etc, all with the highest integrity. In the end, Jason was able to negotiate a substantial settlement for me, and I believe the company learned not to fire employees for failing to participate in lying to the government. All in all, a very good outcome.
I have had the opportunity in my career to interact with numerous attorneys. Jason truly stands out. I wholeheartedly recommend him to anyone seeking a lawyer for wrongful termination and related employment issues.”
“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 ContractorsFalse Claims Act Whistleblower Protection Law
- How does the NDAA whistleblower retaliation law protect whistleblowers at federal contractors and grantees?
- Must a NDAA Whistleblower Retaliation Plaintiff Prove a Subjective Belief of a Violation?
- What whistleblowing is protected under the False Claims Act anti-retaliation provision?
- Does the False Claims Act protect whistleblowers against retaliation?
- Is whistleblowing in the course of performing job duties protected under the False Claims Act?
- Does the participation of a supervisor with knowledge of protected whistleblowing in the decision to take an adverse personnel action prove knowledge under the False Claims Act whistleblower protection provision?
- Can a False Claims Act whistleblower retaliation plaintiff obtain double back pay (two times lost wages and benefits)?
- Are employees whose jobs require investigating fraud against the government required to meet a higher pleading standard?
- Are “duty speech” disclosures protected under the False Claims Act?
- What protections are available to federal contractor whistleblowers under the NDAA whistleblower protection law?
- Can False Claims Act whistleblowers use confidential documents to report fraud to the government?
- What is the purpose of the False Claims Act whistleblower protection provision?
- Does the False Claims Act protect a whistleblower who refuses to violate the Act?
Examples of FCA Protected Whistleblowing
In United States v. Triple Canopy, Inc., 857 F.3d 174 (4th Cir. 2017), cited by Graham, the Government alleged that the defendant, a contractor engaged to provide security for Al Asad Airbase in Iraq through guards who had achieved a specific marksmanship qualification, violated the FCA by falsifying certifications of marksmanship and knowingly billing the Government the full contract price for guards who failed to meet the contractually specified marksmanship level. Id at 175-76. The court held that such misrepresentations were material because the Government’s decision to pay “would be influenced by knowledge that the guards could not … shoot straight.” Id. at 176.
Lord v. Univ. of Miami, Dist., No. 13-22500 (SD Florida 2021) discusses the heightened notice requirement for compliance professionals:
“Even though section 3730(h) protects “[a]ny employee” from unlawful retaliation, 31 U.S.C. § 3730(h)(1) (alteration added), the heightened requirement for compliance professionals derives from the statute’s causation element and the “core insight” that “an employer is unlikely to be on notice when an employee does not raise concerns about fraud or simply does [his] job,” Singletary, 939 F.3d at 305-06 (Katsas, J., dissenting) (alteration added; citation omitted); see also Reed, 923 F.3d at 767. In an unpublished case, the Eleventh Circuit lent some support to the principle that compliance employees must do more than others to establish employer notice. See Mack, 148 F. App’x at 897 (citing Maturi, 413 F.3d at 173).
The 2009 and 2010 amendments to section 3730(h) left intact this higher hurdle for compliance workers. See Reed, 923 F.3d at 767. Still, the amendments affect how a compliance employee — or any employee — may prove notice. That is because “[o]nce Congress expanded the scope of protected activity, the universe of conduct that a plaintiff could allege to show notice also necessarily expanded.” Reed, 923 F.3d at 766 (alteration added; citation omitted); see also United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 742 (D.C. Cir. 1998) (“[T]he kind of knowledge the defendant must have mirrors the kind of activity in which the plaintiff must be engaged.” (alteration added)). Thus, an employee may establish notice at the pleading stage by alleging that his employer was aware of either his “lawful acts. . . in furtherance of” a False Claims Act suit or his “other efforts to stop 1 or more violations of” the Act. 31 U.S.C. § 3730(h)(1) (alteration added).
So, what exactly must compliance employees allege to establish notice? Broadly speaking, “notice can be accomplished . . . by any action [that] a factfinder reasonably could conclude would put the employer on notice that litigation is a reasonable possibility[,]” Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 868 (4th Cir. 1999) (alterations added); or, post-amendments, by any action that would make an employer aware of the plaintiff’s efforts to stop violations of the False Claims Act, see 31 U.S.C. § 3730(h)(1).
More concretely, a compliance professional might establish notice “by expressly stating an intention to bring a qui tam suit,” Eberhardt, 167 F.3d at 868; “characterizing the employer’s conduct as illegal or fraudulent[,]” id. (alteration added); “recommending that legal counsel become involved[,]” id. (alteration added); “act[ing] outside his normal job responsibilities[,]” Williams, 389 F.3d at 1261 (alterations added; citation omitted); or “alert[ing] a party outside the usual chain of command[,] id. (alterations added; citation omitted). A compliance employee need not “incant talismanic words to satisfy the notice element,” id.(citations omitted), but if the employee is the source of the employer’s notice, he must do more than “[m]erely grumbl[e] . . . about job dissatisfaction or regulatory violations” or report mischarging the government to a supervisor, Yesudian, 153 F.3d at 744 (alterations added); see Eberhardt, 167 F.3d at 868 (citations omitted).
It also matters who within the employer had notice of a plaintiff’s allegedly protected conduct. “To establish causation under [section] 3730(h)(1), the plaintiff must show that the final decision-maker who approves or implements the adverse employment action knew about the plaintiff’s protected conduct.” Kalch v. Raytheon Tech. Servs. Co., LLC, No. 6:16-cv-1529, 2017 WL 3394240, at *3 (M.D. Fla. Aug. 8, 2017) (alteration added; citing Reynolds v. Winn-Dixie Raleigh, Inc.,620 F. App’x 785, 792 (11th Cir. 2015)); see also Mack, 148 F. App’x at 897(citations omitted).
Deciding whether a compliance employee has stated a valid retaliation claim requires striking a delicate balance. Courts must determine whether the plaintiff has plausibly alleged employer awareness beyond its knowledge that the plaintiff fulfilled his ordinary job responsibilities, but they must also avoid imposing a more demanding burden on the plaintiff than federal pleading standards require. See Singletary, 939 F.3d at 302; see also Guerrero v. Total Renal Care, Inc., No. EP-11-cv-449, 2012 WL 899228, at *8 (W.D. Tex. Mar. 12, 2012) (citations omitted). On a motion to dismiss, the question is whether the plaintiff “allege[s] facts that, viewed in her favor, make clear that her employer had been put on notice that she was trying to stop it from violating the False Claims Act and not merely doing her job.” Reed, 923 F.3d at 767 (alteration added).”
False Claims Act Retaliation Causation Jury Instruction
From USA ex rel Brandon Barrick v. Parker-Migliorini International et al,
Mr. Barrick must also prove, by a preponderance of the evidence, that PMI retaliated against him “because of” his engagement in protected activity. To establish this element, Mr. Barrick must prove that “but-for” his engagement in protected activity, PMI would not have retaliated against him. In other words, Mr. Barrick must prove, by a preponderance of the evidence, that PMI would not have retaliated against him in the absence of his protected activity.
Often, events have multiple “but-for” causes. For example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a “but-for” cause of the collision.. . . In Bostock, the Supreme Court noted that Title VII “prohibits employers from taking certain actions `because of’ sex.” 140 S. Ct. at 1739. Citing Gross and Nassar, the Supreme Court discussed that the phrase “because of” imposed a but-for causation standard and further stated, “[o]ften, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.” Id. (emphasis in original).
Qui Tam Whistleblower Retaliation Attorneys
For a confidential consultation about a potential qui tam lawsuit, contact us at 202-262-8959.
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:
- Boosting Contractor Employee Whistleblower Protections, Law 360 (December 2016)
- New Tools to Combat Whistleblower Retaliation, Taxpayers Against Fraud Education Fund Quarterly Review, Vol. 57 (October 2010)
- GAO Report Calls for Improvements in Government Contractor Whistleblower Protections
- False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection
- NDAA Provides Robust Whistleblower Protection
- FAR Amendment Bars Agencies from Subsidizing Whistleblower Retaliation
- NDAA Contractor Whistleblower Protection Law Highly Effective in Rooting Out Fraud
- Congress Enacts Anti-Gag Provision in Cromnibus Spending Bill
- Whistleblower Lawyer Jason Zuckerman Will Speak About False Claims Act Litigation at Taxpayers Against Fraud Conference
- Whistleblower Protections Under the Whistleblower Protection Act, Practical Law (October 2016)
- Whistleblower Lawyer Jason Zuckerman Quoted in National Law Journal
- Whistleblower Lawyer Jason Zuckerman Quoted About Federal Employee Whistleblower Rights
- Washington Post Quotes Whistleblower Attorney Jason Zuckerman About Chilling Effect of Insider Threat Program
- How to foster a more ethical culture
- Whistleblower Lawyer Jason Zuckerman Quoted About MacLean Whistleblower Protection Act Case
- Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff
- CFPB official wants to silence a whistleblower before he can talk to Congress
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.