Protection for the Whistleblower
Most qui tam actions are brought by employees of companies that have defrauded the government. Employees are in a special position to witness and report fraud. Many employees who know of fraud, however, are reluctant to come forward for fear of retaliation. Federal law protects employees who file qui tam actions. An attorney can advise you regarding your rights as an employee filing a qui tam action.
The Law against Retaliation
The False Claims Act has several provisions in place to protect employees who file qui tam actions. The initial complaint remains under seal for at least 60 days; often the government requests that it remain under seal for a longer period of time while the investigation continues. While the complaint is under seal, the identity of the filing party is not available to the public.
The whistleblower's identity is unlikely to remain secret indefinitely, however. Aside from the fact that the complaint will be unsealed if and when the lawsuit goes forward, the employer may be able to deduce the identity of the whistleblower by the nature of the investigation. Certain matters will be a focus of the government's inquiry, and the employee's proximity to these matters may clue the employer in. Often, employees first attempt to rectify wrongdoing through internal measures; the employee's previous actions may indicate a willingness to pursue legal avenues.
Upon discovering the identity of the whistleblower, it is not unusual for management and fellow employees to harass or ostracize the whistleblower. Some whistleblowers may find themselves demoted, denied promotions or pay raises, suspended or even fired. This is a difficult situation for anyone to endure, but the law provides remedies in such cases.
Federal law prohibits employers from taking retaliatory action against both employees who file qui tam actions and those who assist them. Courts typically interpret the law to provide broad protection. State law may also offer protection.
Proof of Retaliation
To make a case that an employer retaliated against an employee in violation of the False Claims Act, the employee must show that:
- The employee took action that is protected under the False Claims Act
- The employer is covered under the False Claims Act
- The employee suffered retaliation such as suspension, firing, demotion, harassment or threats
- The employer took the prohibited action because of the employee's protected actions (for example, filing a qui tam action)
Remedies for Retaliation
If the court or a jury finds that the employer retaliated against the employee in violation of the False Claims Act, the employee is entitled to:
- Reinstatement, with the same seniority the employee would have had if the retaliation had not happened
- Twice the amount of back pay, plus interest
- Special damages, such as attorney's fees and court costs
Speak with an Attorney
The law protects and encourages employees who expose the fraudulent activity of their employers. If you are an employee who is considering filing — or already has filed — a qui tam action, seek the counsel of an experienced attorney. Contact a lawyer to learn about your rights and how to protect them.
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