Blowing The Whistle On Government Fraud: Whistleblower Protection For FCA Claims

It can be uncomfortable to be a witness in a potential fraud claim. If you have evidence that your employer engaged in activity that violates the False Claims Act (FCA), it can be difficult to know what to do. You don’t want to let the wrongful acts go on, but it is normal to worry that your employer will fire you or retaliate against you in other ways if you report the behavior or 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 always easy to take advantage of these protective laws. However, an experienced FCA whistleblower attorney can help protect you.

My name is Michael Porter, and I have been helping clients pursue claims under the FCA for decades. At The Law Firm of Michael S. Porter, LLC, I represent workers who have bravely spoken up about activity that violates the FCA and have been mistreated by their employers because of it.

Special Protection For Whistleblowers Who Report Fraud

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 protection to employees, contractors or agents who attempt to defraud a government agency. Specifically, an employee, contractor or agent can seek relief if they are:

• Discharged
• Demoted
• Suspended
• Threatened
• Harassed
• Discriminated against

In order to seek whistleblower protection, the employee, contractor or agent has to demonstrate a causal connection between their FCA claim, or their assistance of an FCA claim and the retaliatory action.

Answering Your Frequently Asked Questions About FCA Whistleblower Claims

As an FCA claims lawyer, I am often asked the same questions about the whistleblower protections as defined in the FCA. Here, I answer some of those questions. For answers to questions about your specific circumstances or FCA claim, I offer my clients a free case evaluation and consultation.

What happens if my employer retaliates against me?

Relief under the whistleblower protections in the FCA can include:

• Reinstatement with the same seniority status the employee contractor would have had without the discrimination
• Two times the amount of back pay with interest
• Compensation for special damages, including attorneys fees.

An action for whistleblower protection may be brought in the appropriate district court of the United States for the relief provided in this subsection.

What is the statute of limitations for bringing a civil action for a whistleblower claim under the FCA?

A claim must be filed within three years of the time the retaliation occurred. An experienced FCA whistleblower attorney can help you better understand the deadline for filing a potential whistleblower claim.

What does it mean to have a causal connection between asserting the FCA claim and the retaliatory action?

In order to 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 10th 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 in the United States, warning the employer of regulatory noncompliance and false reporting of information to a government agency, and 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 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 that I talked to the government or filed an FCA claim?

Typically, your employer will not know for several years that you have spoken with the government or filed an FCA lawsuit. This is because your communications with the government during the initial stages of the lawsuit are confidential, and the lawsuit itself is held under seal in the federal court system.

This is so that the government can 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.

I have confidentiality agreements at work. What kind of evidence do I need to prove my whistleblower claim?

Generally speaking, it won’t matter if you have a confidentiality agreement with your employer. 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, the Health Insurance Portability and Accountability Act (HIPAA) 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 endanger 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 confidentially 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.

Consult An FCA Whistleblower Attorney For Free

I offer my clients an initial consultation appointment for free. Contact my office to learn more about your whistleblowing rights and your legal options. To schedule your free appointment, you can call CALL or send me an email.