Protecting Whistleblowers – A Look at the Anti-Retaliation Provisions in the False Claims Act

Whistleblowers are integral to the fight against health care fraud and other allegations that fall under the False Claims Act. Our California government fraud law partners with these brave, honest individuals in bringing these lawsuits against people and companies that defraud the government. We also work to protect the rights of the whistleblowers themselves. This includes the right to a potential monetary reward for their work and their bravery as well as the right to be protected from retaliation against whistleblowers.

False Claims Act Refresher
The False Claims Act (“FCA” or “the Act”), along with its state equivalents, is the statute that whistleblowers (and even the government itself) typically use to fight back against schemes that defraud the government. As regular readers know, Medicare fraud and other forms of healthcare fraud are a big problem, costing our government and the American people billions of dollars each year. Other general types of fraud that can be brought to an end using the FCA include defense contract fraud (for example, a company lying about the prices it has given private parties for the same products or services being provided to the government) and procurement fraud (for example, agreements between competing companies about the minimum price they will charge in bids for government work).

The Anti-Retaliation Provisions in the False Claims Act
Section h of the Act specifically prohibits employers from retaliating against an employee for taking lawful steps pursuant to an FCA action or other attempts by the employee to stop a violation of the Act. The Act describes prohibited retaliation as the employee or agent being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment.” Section h allows an employee to seek protection if they can prove that they acted in furtherance of the FCA’s principles, that the employer was aware if such action, and that the employer then discriminated against the whistleblowing employee because of the employee’s conduct. Notably, the Act applies even if no FCA claim has been filed and even if the employee didn’t even know about the FCA. For example, the anti-retaliation rule would still apply if an employee was demoted for investigating a potential fraud and had not filed a claim or sought legal help (the employee might sense the fraud is wrong and likely illegal, even if they’d never heard of the FCA).

Subsection (h)(2) explains the potential damages in a claim under the rule against retaliation. An employee who proves a case of retaliation is entitled to be reinstated to the status they would have had absent the retaliation. The employee is also entitled to double the total of any back pay, interest on that pay, and other monetary damages resulting from the retaliation (including attorneys’ fees and other costs of bringing a claim).

Partnering With Whistleblowers, Protecting their Rights
Retaliation concerns surface in a range of contexts, including within the recent scandal within the Department of Veterans Affairs. NBC reports employees filed allegations of retaliation in 19 states, including California. The issues and exact laws are different but the general principles are the same. In the VA cases, the Office of the Special Counsel is investigating to protect the whistleblowers. In FCA cases, especially those in California, the Brod Law Firm can protect you while also making sure your concerns are heard and fraud is brought to an end.

We understand that the decision to speak up is incredibly difficult. As you consider whether to stay silent, ponder the question – Would you want someone to stand up on your behalf if your rights were being violated (a follow-up to the “First They Came” speech? If you decide to fight FCA frauds, do not do so alone. The FCA is complex and it takes a knowledgeable expert to bring a proper claim. You need an attorney to help you file and to help remind you of the reasons you decided to speak up during the days the process feels long. You also need an attorney who is on the look-out for your interests, ensuring you aren’t retaliated against and helping if you are. Let the Brod Firm, led by experienced Northern California whistleblowers’ lawyer Attorney Greg Brod, be this invaluable teammate.

(Photo by Clyde Robinson of work by Jason Luper)