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The False Claims Act provides protections for certain whistleblowers. Courts have generally interpreted the protections broadly to protect whistleblowers, even if they don’t actually file a False Claims Act suit.
The protection of the Act extends to any “employee, contractor, or agent” if such person is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done” and the employer acts “in retaliation for any lawful act taken by the employee in furtherance of an action under the False Claims Act.”
The protection extends to all activities involving the investigation and initiation of a False Claims Act case, testimony in such a case or any assistance in an action filed or to be filed under the Act. In order to fall within the Act’s employment protections, most courts require a whistleblower to demonstrate that (1) he or she engaged in an activity protected by the statute in furtherance of a qui tam suit, (2) the employer knew of the employee’s actions, and (3) the employer retaliated against the employee as a result of these actions.
“The False Claims Act provides some protections for employees who have been retaliated against as a result of their whistleblowing activities.”
An employee who obtains relief under the Act is entitled to reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay owed, interest on the back pay and compensation for any “special damages” sustained as a result of the discrimination, including litigation costs and attorneys’ fees.
In some situations, it is desirable for a whistleblowing employee to retain separate employment counsel to handle the employment aspects of a False Claims Act case. In other situations, the whistleblower’s False Claims Act attorney can handle both the employment and fraud aspects of the qui tam case. In most instances, it makes sense to file the employment allegations as part of the overall qui tam litigation.