Making the decision to come forward as a whistleblower often takes both courage and gumption. The negative consequences that have faced whistleblowers range from unkindness to threats of violence – and everything in between. For whistleblowers planning to expose fraud in the workplace, many fear that their decision to expose the fraud – which almost always costs the company a substantial amount of money – will result in their immediate demotion or termination.
Fortunately, whistleblower laws are set up to protect employees from this type of employer misconduct – known as retaliation. Retaliation by an employer is considered to be any adverse action taken against the employee, and it is not limited just to being fired. In fact, anti-retaliation laws apply to demotions, reduction in benefits, refusal to provide training, and virtually any other act or omission by the employer resulting in the whistleblowing employee being treated less favorably as a result of the employee’s decision to come forward.
False Claims Act: Anti-Retaliation Provision
The False Claims Act contains a clear-cut anti-retaliation provision to protect whistleblowers from adverse treatment. Under the terms of 31 U.S.C. §3730(h), employers may face a separate cause of action for mistreating an employee for “lawful acts done by the employee” in furtherance of his whistleblower action. To prevail on a claim of retaliation, the employee must be able to prove the following:
- The employee actually filed a complaint or took action under the False Claims Act;
- The employer had knowledge of the employee’s False Claims Act lawsuit, and;
- The employer discriminated against the employee as a direct result of the False Claims Act filing (i.e., there must be a causation element).
If the employee can prove each of these three elements of the anti-retaliation provision, he could obtain separate compensation above and beyond his whistleblower reward, as well as replacement in his previous position or restoration of his previous job position.
Anti-Retaliation in the Securities Industry
The Securities and Exchange Commission (SEC) maintains its own set of whistleblower laws, including similar protections against retaliation. The SEC’s rules require that the whistleblower report his original information to the SEC’s whistleblower office first, as opposed to reporting to internal compliance managers or other non-governmental entities. The SEC warns that employees wishing to come forward with information are only protected against retaliation if they report their information directly to the government, and it cannot protect an employee against retaliation following internal exposure of fraud. In other words, an employee who reports securities fraud to internal compliance managers may be lawfully demoted or terminated for exposing the scheme, whereas the same employee would be protected under federal anti-retaliation laws for reporting the same information externally to the SEC’s whistleblower office.
This controversial legal distinction has drawn harsh criticism from many seeking to protect whistleblowers in all instances – not just when the report is provided to certain governmental entities.
Concerns About Workplace Retaliation? Contact Berger Montague Today
If you are fearful of adverse treatment but would like to report fraud in your workplace, talk with a confidential whistleblower attorney today. Your attorney will help you better understand retaliation laws and how to avoid adversity from your employer. For more information, contact Berger Montague today.