Laws have been passed to help protect whistleblowers from retaliation for reporting violations of the law, such as Medicare fraud. No longer can an employer be immune from liability for retaliation when an employee is engaged in protected activity. Corporations can no longer demand that its employees remain blindly loyal and silence them with threats. Nolan Auerbach views its clients as heroes for having the courage to step forward and become whistleblowers in healthcare fraud cases. Cases range from pharmaceutical fraud, medical device fraud, and hospital fraud, involving conduct from cost report violations, to kickbacks, to Stark violations.
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, 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 or one of your family members is fired, demoted, suspended, threatened, or otherwise discriminated against because you tried to stop your employer from cheating the federal government, you have standing to sue. Here are some things you need to know:
1. You have to be able to prove that you made efforts to stop or correct improper actions that violate the False Claims Act. It is not required that you tell your employer that you are planning on filing a qui tam lawsuit. Title 31 U.S.C. Section 3730(h) prohibits retaliatory actions against any employee, contractor or agent who take lawful actions in furtherance of a False Claims Act. This anti-retaliation statute reflects the 2009 Congressional revisions to include both current and former employees, as well as contractors and agents. The types of retaliation action covered by the statute include discharge, demotion, suspension, threats, or harassment.
2. The protection of the retaliation statute applies if the whistleblower believes in good faith that his employer is violating the False Claims Act, whether or not they are correct in their belief. 31 U.S.C. 3730(h)(1) requires that the employee was engaged in protected activity, that he was retaliated against because of that activity, and that the whistleblower’s employer knew he was engaged in protected activity. This protected activity also includes the process of investigating or determining whether or not fraud occurred. It is not required that an employer be told that a whistleblower has hired an attorney or intends to file a qui tam lawsuit. Rather, the employer can be sufficiently notified if a whistleblower tells his manager or supervisor that he is concerned about possible Medicare fraud, improper billing or raises concerns about off-label marketing or kickbacks.
3. You may be able to recover damages from your employer for the losses you have actually sustained. “Being made whole” addresses the kind of damages you may expect, like double your back pay, plus interest, if you have been fired. You also would be entitled to reinstatement with the same seniority. The False Claims Act anti-retaliation section specifically provides remedies under 31 U.S.C. Section 3730(h)(2) that are available to a whistleblower which include reinstatement with the same seniority status that the whistleblower would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.
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. Do not confuse your desire to “get even” with your ability to produce actual proof.
6. Act on proof, not suspicion. Do not let your emotions cause you to jump into a lawsuit because you do not like your supervisor or you are otherwise unhappy at your workplace.
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 does not mean that there will be enough to light a legal fire. It is just as important for you to find out that you probably do not have a case as it is for you to learn that you do.
8. If you have grounds to file a whistleblower retaliation claim you might also have grounds to file a False Claims Act or qui tam lawsuit based on your employer’s submission of false claims to the federal government.