Coming forward to fight fraud against the government takes courage. Most whistleblowers fear retaliation, and even the bravest whistleblower wants to know what will happen if they face retaliation.
Fortunately, state and federal laws, including the False Claims Act (FCA), provide protections for whistleblowers. A FCA lawsuit is originally filed under seal and is not served on the defendant while the government investigates the claim, during which the identity of the whistleblower remains anonymous. The federal False Claims Act (FCA) also includes an anti-retaliation provision to help protect whistleblowers.
The Anti-Retaliation Provision
One of the most important pieces of whistleblower protection legislation is the anti-retaliation provision of the False Claims Act. 31 U.S.C. § 3730(h). The FCA retaliation provision prevents employers from firing, threatening, suspending, harassing or otherwise discriminating against employees who report or try to stop an employer who is taking part in fraudulent activity against the government.
If an employer does terminate, suspend, harass or otherwise act against a whistleblowing employee, the provision allows the employee to file a lawsuit seeking damages. These lawsuits are sometimes called "H" claims, named after the relevant subpart of the False Claims Act. To succeed with an H claim, the employee needs to prove that they were involved in an activity protect by the FCA and that they were discriminated against because of those protected activities. Employees typically have three years to file an H claim.
What are Protected Activities?
Under the FCA, protected activities include attempts to report or stop fraudulent activity against the government. Protected activities include; refusing to participate in fraud, investigating and reporting fraud, and assisting others who report or investigate fraud. Importantly, whistleblowers do not have to prove fraud in order to prevail on their H claim – it is enough to show that they were engaged in a protected activity, and that they were discriminated against because of their protected activities.
To prove that the protected activity led to the discrimination, employees typically need to show that their employer had knowledge of the protected activity, and took action against the employee at least in part because of their protected activity. If an employee’s claim under the retaliation provision of the FCA is successful, the employee is entitled to various remedies, including reinstatement, double back pay with interest and reasonable attorneys' fees and litigation costs.
Contact a Whistleblower Protection Attorney
If you have been fired, demoted or otherwise faced discrimination at work because your effort to stop or report fraud against the government, contact Goldberg Kohn for a free consultation.
Do not assume that any agreement you may have signed with an employer or former employer precludes you from filing a lawsuit under the FCA. If you did sign an employment agreement, such as a non-compete, a confidentiality agreement, or a severance agreement, consult an attorney about its merit.