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Are There Protections Against Retaliation?

Whistleblowers often face retaliation for reporting their concerns about fraud inside their company and to the Government. In an attempt to do damage control, unethical employers may punish employees for raising concerns by firing, demoting, or harassing them. The False Claims Act recognizes the potential risks individuals face when exposing fraud and includes safeguards to encourage them to do the right thing.  Under the False Claims Act, it is illegal for employers to retaliate against employees, contractors, or agents who bravely come forward to report fraud.

Who is Protected?

The False Claims Act anti-retaliation provision applies to employees, contractors, agents and associated others. Generally, this means the protection extends only to employer/employee relationship, whether W-2 or 1099. 

 

For example, if a potential employer refuses to hire you because you are a whistleblower, the False Claims Act anti-retaliation provision does not apply to you. However, if you are fired by a current employer because they found out you were a whistleblower, the anti-retaliation provision would apply.

What Actions Are Protected?

The False Claims Act protects two things:

  • Lawful acts in furtherance of an action under the False Claims Act including investigation, speaking with the Government or filing a lawsuit; and

  • Other efforts to stop one or more False Claims Act violations including refusing to participate in the fraud, internal whistleblowing or educating others about the fraud.

Courts have held that an employee’s actions are protected regardless of whether there is an actual False Claims Act violation so long as the employee has an objectively reasonable belief that the employer is violating, or will violate, the False Claims Act. See, e.g. Moore v. California Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002). This means that if the employee was mistaken about whether her employer was violating the False Claims Act is not determinative of whether her actions were protected. Therefore, as long as a reasonable person in the employee’s position would have believed that their employer was potentially committing fraud, or was likely to commit fraud in the future, that employee is protected if they reported their concerns or tried to stop what they believe was fraudulent activity.

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What Retaliatory Acts Are Whistleblowers Protected From?

The False Claims Act’s anti-retaliation provision protects employees, contractors, agents, and associated others from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment”.

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How Long Do I Have to File a Retaliation Claim?

You have three years to file your claim from the date of the retaliation. There can be multiple instances of retaliation before termination, so you will want to file before the statute of limitations runs on the first instance of retaliation. Generally, if the case is filed within the statute of limitations, the retaliation claim can be included with the False Claims Act claim. You will, however, have to wait while the Government investigates the fraud, but once the case becomes unsealed, you can litigate the retaliation claim or settle all the claims together.

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What Damages Can I Recover?

If you prevail in an anti-retaliation action under the False Claims Act, you may recover:

  • Reinstatement of your job with the same seniority status;

  • Two times back pay, plus interest;

  • Special damages, which include litigation costs, reasonable attorney’s fees and emotional distress.

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