Are whistleblowers protected?
What are a Whistleblower’s Rights When an Employer Retaliates Against the Whistleblower for Reporting Government Fraud?
A. What is a Whistleblower Retaliation Claim under the Federal False Claims Act?
One of the realities of a whistleblower bringing or reporting a qui tam claim against his or her employer is the potential retaliation against the whistleblower. Retaliation may include the whistleblower getting fired, demoted, suspended, a reduction in pay, denial of a bonus, a job transfer, harassment, a change of reduction of job duties, among other examples. Fortunately, the False Claims Act, 31 U.S.C. 3730(h), protects the whistleblower from this type of retaliation with significant remedies for discrimination. To win a qui tam retaliation case, the whistleblower must prove the following:
- The whistleblower brought an action, reported a false claim to the federal government, or took some other action in furtherance of reporting fraud on the government;
- That the employer knew about the whistleblower’s actions in reporting false claims that were submitted to a government program; and
- That the employer discriminated against the whistleblower as a result of the whistleblower’s actions or reports of the fraud.
Notably, the whistleblower may receive protection against employer retaliation even if the whistleblower has not yet filed a court action under the False Claims Act. A whistleblower’s investigation or research into an employer’s false claims is sufficient to merit protection under the anti-retaliation provisions of the False Claims Act, if the whistleblower’s actions were performed "in furtherance of" a qui tam action. It does not matter the whistleblower ultimately filed the qui tam action; it only matters that the whistleblower was acting in furtherance of bringing an action or reporting fraud.
The remedies available to the whistleblower are significant and a powerful deterrent to employer retaliation. These remedies to the whistleblower include:
- Double back pay;
- Interest on the back pay;
- Reinstatement of seniority status at the same position the whistleblower maintained before reporting the fraud;
- Any special damages, including but not limited to possible lost commissions, bonuses, raises, vacation pay, or other fringe benefits; and
- Recovery of attorney’s fees and costs.
B. Proving Your Whistleblower Retaliation Claim
If you are concerned about retaliation for bringing a whistleblower qui tam claim, the best thing the you can do is keep a detailed diary, notes or calendar of the employer’s pattern and actions of retaliation.
Here are some suggestions for recording facts that will support a retaliation claim:
- List how your job duties have changed or been reduced after you reported the false claims to a supervisor(s);
- Take contemporaneous notes of the reaction of your supervisor(s) when you reported the false claims, including the dates, persons met with, and substance of each conversation on the topic;
- Keep a hard-copy or electronic calendar (not on your work computer) of important meetings, conversations, and developments that occurred after you reported the false claims;
- Keep copies of any performance reviews, including reviews given both before and after you reported the false claims;
- Gather payroll, bonus, and/or commission records, including both before and after you reported the false claims;
- Document how you have been excluded from certain meetings, projects, duties, conversations, information, documents, or e-mails in which you formerly participated or had access;
- Identify any promotions for which you were in line and a less qualified person received the promotion after you reported the false claims; and
- Prepare a notebook to keep all records, notes, e-mails, calendars, and reviews organized and in one place.
C. Hiring a Whistleblower Lawyer for Your Retaliation Claim
If you have a retaliation claim against your employer or former employer, McCabe Rabin’s Florida whistleblower lawyers have assembled a fantastic team to evaluate and pursue your case. Our qui tam attorneys consist of former federal prosecutors, business litigation specialists, former federal appeals and district court law clerks, investigators of Medicare fraud cases at the United States Attorney’s Office, attorneys who have achieved a multi-million dollar settlement in favor of their whistleblower clients, the former chair of the U.S. District Court for Southern District of Florida Bench and Bar Conference, and the President of the local chapter of the Federal Bar Association.
Please Note: McCabe Rabin, P.A. provides these FAQ’s for informational purposes only, and you should not interpret this information as legal advice. If you know about government fraud and want advice as to how the law might apply to the specific facts and circumstances of your case, please click here to contact one of our attorneys.