Limitations and Protections for Whistleblowers Under the False Claims Act
Whistleblowers who expose government fraud under the federal False Claims Act (“FCA”) stand to receive awards from the government that can total millions of dollars. As we recently discussed, a former employee of a Tacoma medical provider received an award of $2.7 million from his whistleblower action, also known as a qui tam lawsuit. However, there are many ways that a whistleblower’s award can be decreased or even denied altogether. Still, even if the whistleblower does not benefit financially, he is likely still protected from retaliation for reporting the fraud.
First, a whistleblower’s reward, also called a relator’s share award, can be reduced if the judge finds that the whistleblower played a role in committing the fraud. In addition, the FCA prohibits any kind of award if the whistleblower was convicted of criminal conduct because of the role he played in the fraud.
Second, the whistleblower might not be entitled to any kind of award if he acts too slowly. The “first to file” rule under the FCA states that a whistleblower cannot pursue a qui tam action if someone else already has filed a lawsuit relating to the same conduct. The same goes for if the government is already involved in a civil lawsuit or administrative proceeding that concerns the same conduct.
Third, if a qui tam lawsuit is based on information that is already public, then the whistleblower cannot pursue his action. The only exception is if the whistleblower was the one who reported that information to the public in the first place.
Finally, the courts do not have jurisdiction to hear certain qui tam cases. For example, a court cannot hear a qui tam claim from a former or current member of the military against another member of the military if the claim was based on that person’s military service. Members of Congress, members of the judiciary branch, or senior officials of the executive branch cannot be sued in a qui tam action if the government already knew the information.
Even if they are not able to collect damages for a qui tam claim, whistleblowers are still protected from retaliation by their employers for bringing a claim if they reasonably believed that the employer had violated the FCA. Employees, contractors, and agents are protected from any kind of discrimination, including being fired, suspended, demoted, harassed, or threatened, based on whistleblower activities. If a whistleblower’s employer discriminates against him, the employee is entitled to reinstatement at the same level of seniority, any damages that the discrimination caused, and double the amount of back pay the employee is owed, with interest.
Qui tam actions reward private citizens who oppose fraud against the government. However, there are times when a whistleblower’s award may be reduced or when a qui tam action is prohibited by law. Even in those cases, a whistleblower is protected from retaliatory acts from his employer. To understand more about qui tam lawsuits, contact an employment lawyer.