Whistleblower Protection
Whistleblowers are usually long-time loyal employees who sit fairly high in the corporate organization and have a strong moral constitution. The primary motivation of the whistleblower is to correct wrongdoing. There is good news for whistleblowers or potential whistleblowers: If you work for a company or organization that you legitimately believe is defrauding the government, should you decide to blow the whistle, the law is on your side, particularly if your employer has retaliated against you. The Federal False Claims Act is specifically designed to encourage citizens to report fraud – and to protect them from retaliatory actions; this protection also extends to a contractor or agent. If you are fired, “demoted,” “suspended,” “threatened,” or otherwise “discriminated against” because you are considering filing a False Claims Act lawsuit or qui tam, and your employer is aware that you are blowing the whistle, you have standing to sue. Here are some things you need to know:
1. You have to be able to prove that you were considering or investigating filing a qui tam lawsuit – and that your employer was at least on notice of the possibility. If you are out to prove that you were fired or otherwise harassed in retaliation for your whistleblower activity, you have to be able to show that your employer knew about your decision and was out “to get you” because of it. The magic words include “fraud” and “False Claims Act.”
2. Act quickly if your employer retaliates against you. The statute of limitations on filing a wrongful discharge as a whistleblower varies. In some jurisdictions, a whistleblower has six years from the day of the wrongful discharge; in other jurisdictions, a whistleblower only has six months. Don’t delay.
3. “Being made whole” – an odd-sounding phrase – addresses the kind of damages you may expect. You may be able to recover damages from your employer for the losses you have actually sustained – like double your back pay, plus interest, if you have been fired. You also would be entitled to reinstatement with the same seniority.
4. You will not be entitled to “punitive” damages, but you may be entitled to compensation for pain and suffering as a result of any alleged emotional stress you have experienced.
5. Be sure that you have “reasonable” grounds for alleging that your employer is committing fraud. What is “reasonable”? If you have seen a pattern of falsified billing records, if you have proof that government entities are routinely billed for services or products they have not received, then you have “reasonable” indications that your employer is committing ongoing fraud. To prove fraud, you have to be able to demonstrate a pattern, a conscious attempt to deceive the government. Don’t confuse your desire to “get even” with your ability to produce actual proof. Being angry is not proof.
6. Act on proof, not suspicion. Don’t let your emotions cause you to jump into a lawsuit because your boss looked at you the wrong way or because you are otherwise personally offended by his or her actions.
7. Seek professional advice immediately. Potential whistleblowers should consult a qualified attorney who can provide guidance about gathering evidence and navigating potential minefields. Just because you think there may be smoke in a given instance doesn’t mean that there will be enough to light a legal fire. It is as important for you to find out that you probably don’t have a case as it is for you to learn that you do.
8. If you have grounds to file a whistleblower retaliation claim that relates to your employment relationship, you also may have grounds to file a False Claims Act or qui tam lawsuit based on your employer’s submission of false claims to the government.