What Happens After You Blow The Whistle?
If you have witnessed your employer engaging in activity that violates the False Claims Act (FCA), you may feel you are in an uncomfortable situation. You don’t want to let the wrongful acts go on, but you fear that your employer will fire you, or otherwise retaliate against you if you speak up to the authorities.
The good news is that state and federal whistleblower protection laws prohibit employers from retaliating against employees after they report illegal behavior. Unfortunately, it isn’t easy to take advantage of these laws. You need help from an attorney with experience in whistleblower claims.
With my practice, I represent workers who have bravely spoken up about activity that violates the FCA and have been mistreated by their employers because of it.
What happens if my employer retaliates against me?
The FCA and the common law protect employees who blow the whistle on illegal activity. Specifically, the FCA at 31 U.S.C. § 3730(h) provides:
(1) In general.–Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.
(2) Relief.–Relief under paragraph (1) shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An action under this subsection may be brought in the appropriate district court of the United States for the relief provided in this subsection.
(3) Limitation on bringing civil action.–A civil action under this subsection may not be brought more than 3 years after the date when the retaliation occurred.
In order in invoke the provision of § 3730(h), the employee must establish some causal connection between asserting an FCA claim, or assisting in the prosecution of an FCA claim, and the retaliatory action. The various federal circuits are not in sync with what it means to satisfy this standard, so it may prove necessary to review the prevailing cases in the jurisdiction in which your case may be brought. In the Tenth Circuit, which covers Colorado, New Mexico, Utah, Oklahoma, Kansas and Wyoming, the 2012 decision of McBride v. Peak Wellness Center, Inc., 688 F.3d 698, 704 (10th Cir. 2012) held that the defendant had to have been placed on notice that the relator was acting in furtherance of an FCA action or that he was going to report the defendant’s noncompliance to the government to assist it in bringing an FCA action. This notice could be accomplished in different ways including informing the employer of illegal activities that would constitute fraud on the United States, warning the employer of regulatory noncompliance and false reporting of information to a government agency, and to explicitly informing the employer of an FCA violation. 688 F.3d at 704.
These issues are complex and require a thorough investigation of the facts of your case. But if it appears that you have not satisfied § 3730(h)’s standards, all is not lost. The common law recognizes a cause of action for wrongful discharge in violation of public policy. The gist of this cause of action is that the manifest public policy is that an employer should not be permitted to perpetrate a fraud on the government, an employee engages in protected activity by opposing the illegal activity, and if the employer fires the employee for engaging in this protected activity the defendant’s termination of the employee violates public policy and is actionable. (Click here to view a federal complaint in which this cause of action was asserted, see ¶ ¶ 93-100).
Will my employer know I have talked with the government or filed an FCA suit?
Typically, your employer will not know for several years that you have spoken with the government or filed an FCA suit. The reason is that in the initial stages of the suit your communications with the government are held confidential by the government and the lawsuit itself is held under seal in the federal court system. The concept is that the government wants to investigate the merits of your claim without the defendant being aware of the claim. The case remains sealed until the government has completed its investigation. The government commonly requires several years to complete its investigation. While the employer may suspect something is afoot by the nature of the government’s investigation, which can include the government interviewing witnesses or demanding that the employer produce documents to it, your identity will remain confidential until the seal in the case is lifted.
What type of evidence can I retain and show my attorney?
Generally speaking, the common law does not allow confidentiality agreements to be used to cover up the commission of a crime or a civil wrong. The concept is that agreements in violation of public policy are unenforceable and it is against public policy to use a confidentiality agreement, severance agreement, settlement agreement or any other form of agreement to hide the truth. Furthermore, the express policy of the FCA is for private citizens to come forward with evidence of violations of the FCA.
In fact, HIPPA expressly provides that a whistleblower may provide protected health information to the government, or to an attorney retained by the whistleblower, so long as the whistleblower believes in good faith that the defendant has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services or conditions provided by the defendant potentially endangers one or more patients, workers or the public. 45 C.F.R. § 164.502.
Accordingly, you should make every effort to sequester and preserve any and all documents, emails, patient files or other forms of evidence that support your case. This evidence should be maintained confidential and only shown to your attorney or the government.
There is one caveat. You should never sequester documents that reflect communications between the defendant and its attorney. Those types of communications are privileged under the attorney-client communications privilege. That privilege can only be waived by the defendant.