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A common concern among whistleblowers, also known as relators, when it comes to bringing a suit under the False Claims Act (FCA) is that their identity will be disclosed and they may face retaliation as a result. Fortunately, there are measures in place designed to avoid whistleblower retaliation, and to punish employers who engage in it. FCA cases are initially filed under seal, meaning the relator’s identity is not disclosed when a case is first filed. An anti-retaliation provision in the FCA also allows relators to seek relief should they face retaliation at any point, before or after the seal on their case is lifted. Read on to learn more about whistleblower confidentiality and protections from retaliation under the FCA.
Whistleblower Confidentiality
The first step in any lawsuit is the filing of a complaint, which is a document that outlines the reasons the plaintiff is suing the defendant and lists relevant facts. In an FCA case, the complaint is filed under seal. This means the relator's identity is not disclosed for at least 60 days while the Department of Justice investigates the case. The DOJ can extend the seal period if it requires more time to conduct its investigation, and it often does need more time. It is not uncommon for a FCA complaint to be under seal for years while the government investigates it.
Once the government has completed its investigation, the seal is lifted and the whistleblower's identity is made public. The seal will be lifted even if the government ultimately decides not to intervene in the case. In rare circumstances, courts may find that a relator's privacy or safety would be threatened by the lifting of the seal, in which case they can permit the seal to remain in place. However, the public has a right to access records of judicial proceedings, so the general rule is that cases will eventually be unsealed, revealing the complaint (and other pleadings) and the identity of the relator.
If a relator wishes to remain anonymous even after the seal is lifted in an FCA case, there are a few ways of attempting this, each with its own risks and likelihood of success. A relator could file the case under a pseudonym Jane/John Doe, meaning their name would not appear on the complaint. A relator could also create a corporation or LLC in whose name the complaint is filed, which would similarly prevent the name of the relator from being disclosed, at least initially. These approaches can bring their own set of risks and may not always successfully protect a relator’s identity. For example, the relator's essential identifiers such as job title would likely be disclosed in the complaint, which may make it more difficult for the relator to remain anonymous. There are also risks associated with an anonymous relator being eligible for a relator share, and of a corporate relator's ability to be an "original source" under the FCA when a case may be subject to the public disclosure bar. The attorneys at Goldberg Kohn would be pleased to discuss approaches to maintaining relator confidentiality with potential whistleblowers. In most cases, we advise against the devices described in this paragraph.
Although most relators in FCA cases ultimately cannot remain anonymous, this should not necessarily be seen as a barrier to filing an FCA case. Relators are protected from retaliation through the anti-retaliation provision in the FCA, as well as various state laws, as described next.
False Claims Act Anti-Retaliation
The FCA has an anti-retaliation provision, 31 U.S.C. § 3730(h), that provides relief to relators who have been retaliated against. Forms of prohibited retaliation included suspension, firing, threats, harassment, and discrimination.
The anti-retaliation provision allows relators who have been the victim of retaliation to file a lawsuit against employers who retaliate. In order to succeed in such a lawsuit, a relator must demonstrate that:
- The relator engaged in a protected activity
- The employer engaged in retaliatory behavior
- The retaliation occurred because of the relator's involvement in a protected activity
Examples of protected activities include the investigation and reporting of fraud, assisting someone with the investigation and reporting of fraud, and refusal to participate in fraud.
Relators need not show that the employer ultimately did engage in fraud in order to file a successful retaliation suit. A relator only needs to show that they engaged in a protected activity and that the employer retaliated against them in response. To show that an employer's retaliation was a response to a protected activity, a relator must establish that the employer had knowledge of the protected activity and retaliated as a result.
If a relator establishes that they were retaliated against under the FCA, they may be eligible to be reinstated to their job, given twice the amount of pay they lost as a result of the retaliation, and provided compensation for any special damages they sustained as a result of the retaliation, including some litigation costs and attorney's fees. Relators must file a retaliation claim within three years after the date on which the retaliation occurred.
In addition to the FCA's retaliation provisions, most whistleblowers are protected by the state laws applicable to their situation. Most if not all states have anti-retaliation laws that protect whistleblowers from being retaliated against in the workplace. When retaliation has occurred, state law violations are often asserted in FCA complaints along with FCA violations to ensure that the relator has the maximum benefit of all protective statutes.
Goldberg Kohn's Expertise
At Goldberg Kohn, we are committed to helping individuals fight fraud against the government. We assist people in recovering as large a share of recoveries as possible while protecting their rights. Our attorneys have years of experience and resources to take on even the largest corporations in the United States. We understand taking initiatives against illicit activities can be challenging, but the law is on your side, and our attorneys can provide the needed support. Please contact us for a free case review.
