The False Claims Act encourages whistleblowers to come forward when they suspect their employer is committing fraud. This post provides a general overview of the False Claims Act’s anti-retaliation provision, which protects whistleblowers from being retaliated against when they do so.
Basics of the False Claims Act’s Anti-Retaliation Protections
The anti-retaliation provision of the False Claims Act—31 U.S.C. §3730(h)—provides relief to whistleblowers who are retaliated against because they took action in furtherance of a False Claim Act action or undertook efforts to stop a False Claims Act violation. The provision applies to all types of retaliation, including termination, demotion, suspension, harassment, threats, or any other discrimination in the terms and conditions of employment. And the protections apply regardless of the type of employment relationship at play—all employees, contractors, and other agents of the employer are covered.
A whistleblower may assert a retaliation claim as a standalone cause of action. But in practice, whistleblowers often assert retaliation claims along with substantive fraud claims under the False Claims Act. A whistleblower may bring a retaliation claim in federal court and has up to three years after the date of the retaliation to file suit. Retaliation claims are subject to the pleading standard of Federal Rule of Civil Procedure 8(a), as opposed to Rule 9(b)’s heightened pleading standard for substantive False Claims Act claims.
Elements of a Retaliation Claim
To prove a retaliation claim, a whistleblower must establish that:
- The whistleblower engaged in protected conduct.
- The employer knew about these acts.
- The employer discriminated against the whistleblower because of such conduct.
The first element requires that whistleblowers prove they engaged in conduct protected by the False Claims Act, which includes taking action in furtherance of a qui tam action, assisting in an investigation conducted by the government, or making other efforts to stop a False Claims Act violation. This may extend to the investigatory efforts of whistleblowers whose allegations could support a qui tam action even if one is never filed.
Of course, to have an actionable retaliation claim, whistleblowers must establish that their employer knew about their conduct in furtherance of the False Claims Act. If that knowledge is lacking, the requisite causal connection for a retaliation claim is too.
Finally, the whistleblower must show that the adverse employment action was taken in retaliation for the protected activities. To make this showing, whistleblowers must prove that the company’s retaliation was motivated, at least in part, by the fact that they engaged in protected activity.
The anti-retaliation provision of the False Claims Act provides remedies designed to “make the employee whole.” Available remedies include (1) reinstatement in the same or a comparable position as would have been held if the discrimination not occurred; (2) two times the amount of back pay, plus interest; and (3) special damages resulting from the discrimination, including reasonable attorneys’ fees and litigation costs.
If you have any questions about the False Claims Act, including its anti-retaliation provision, please contact a member of Bass, Berry & Sims’ Healthcare Fraud & Abuse team. Please also check out other posts on this blog where we dive deeper into other specific aspects of the False Claims Act.