Whistleblower Protection From Employer Retaliation

Whistleblowers are often insiders who learn that their employers are engaged in fraud. Unfortunately, when whistleblowers raise issues about suspected fraudulent conduct, either internally or to outside sources, employers often attempt to retaliate against them.

Fortunately, federal and state law provide anti-retaliation protections for whistleblowers. If you are working with Berger Montague on a potential claim and you experience retaliatory action, or if you have been fired before you contact us, we will counsel you about your options and how to navigate the often tricky balance between protecting your employment rights and pursuing a possible qui tam case.

Anti-Retaliation Provision of the Federal False Claims Act

The federal False Claims Act (“FCA”) includes a provision that protects whistleblowers (whether employees or independent contractors) from retaliation by their employers. The anti-retaliation provision of the FCA prohibits an employer from retaliating against an employee “because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violations.”  31 U.S.C. §3730(h).

Prohibited retaliation includes: termination, suspension, demotion, harassment, or any other discrimination in the terms and conditions of employment. In order to prevail on a retaliation claim, an employee must prove:

  1. That the employee took action in furtherance of an FCA action;
  2. That the employer knew about these acts; and
  3. That the employer discriminated against the employee because of such conduct.

In certain instances, a potential employer or another person or entity can be held liable for retaliatory actions.

Whistleblower Protection Laws

In addition to the protections under the federal False Claims Act, most states also prohibit employers from retaliating against employees who report fraud.

For example, the Florida False Claims Act provides that:

“[a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under [the Florida False Claims Act], including investigation for initiation of, testimony for, or assistance in an action filed or to be filed under [the Florida False Claims Act]” may assert an anti-retaliation claim.

Retaliation Damages

The anti-retaliation provisions in the federal and state statutes generally provide for substantial damages when an employer illegally retaliates against an employee, including reinstatement, two times the amount of back pay, interest on the back pay, compensation for any special damages sustained as a result of the discrimination, and the recovery of litigation costs and attorneys’ fees.  31 U.S.C. § 3730(h)(2).

Collaboration Between Qui Tam Lawyers and Employment Lawyers

Retaliation claims also present an opportunity for qui tam lawyers and employment lawyers to collaborate. Retaliation claims can be brought in the same lawsuit as the underlying FCA claims or in a separate lawsuit. In either case, qui tam lawyers ordinarily do not practice employment law and will require the assistance of employment lawyers with respect to retaliation claims. Employment lawyers are often the first to know about potential FCA claims since employees are often fired or suffer other adverse employment actions due to investigating or reporting fraud. Likewise, qui tam lawyers often learn about potential retaliation claims through evaluation and pursuit of claims for substantive violations of the FCA. Employment lawyers and qui tam lawyers can mutually benefit by working together in such circumstances.

Contact a Whistleblower Lawyer

Do you need a whistleblower lawyer or do you want to know more about qui tam law?

There are three easy ways to contact our firm:

  1. Use the contact form on this page.
  2. Email [email protected]
  3. Call (844) 781-3088

Your information will remain confidential while we evaluate your potential claims, and we will work with you to protect your rights.