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Whistleblower Protections in Qui Tam Actions

Most qui tam actions are brought by employees of a company that has defrauded the government. Many employees who know of fraud committed by their employers are reluctant to come forward with information about that fraud, for fear of the possible actions an employer might take in retaliation. Fortunately, federal laws known as "whistleblower" laws carry protections for employees who report fraud on the part of their employers.

Whistleblower Protection

One reason the law requires that complaints in qui tam actions be filed under seal is to protect the identity of the person who brings the complaint. The person's identity will remain secret as long as the case is under seal. However, a whistleblower's identity probably will not remain a secret forever. Employers may deduce the identity of the whistleblower from the questions asked during the investigation, or from the subject of the investigation. If the employee tried to resolve the fraud by internal means within the company, he or she might be identified as the source of the investigation. Furthermore, if the action is pursued beyond the investigation stage to litigation, the complaint will be unsealed, and the identity of the person making the complaint will be revealed.

When a whistleblower's identity is revealed, it is not unusual for the individual to be harassed or ostracized by management and by fellow employees. Even sympathetic co-workers are often reluctant to associate with someone who has fallen so far out of favor with management. Many whistleblowers have also found themselves demoted, denied promotions or pay raises, suspended, or even fired.

Federal law prohibits employers from taking any action against employees in retaliation for filing a suit under the False Claims Act. "Any action" means demoting, suspending, terminating, or "in any other manner discriminat[ing] against [the employee] in the terms and conditions of employment . . . ."

In order to make a case that an employee was the subject of retaliation for being a whistleblower, the employee needs to show the following facts:

  1. He or she was engaged in activity protected by the False Claims Act, in pursuing a qui tam suit;
  2. The employer knew about the employee's qui tam action; and
  3. The employer retaliated against the employee because of that action.

An employee who was terminated or otherwise mistreated for filing a qui tam lawsuit is entitled to reinstatement to his or her former position at the same seniority level as if he or she had never left the company. In addition, the employee may receive two times the amount of back pay he or she would have received plus interest, and compensation for any "special damages" sustained as a result of the discrimination. The term "special damages" includes the costs and expenses of bringing a lawsuit, such as court costs and attorneys' fees.

Legal Help for Whistleblowers

The law protects those employees who expose the fraudulent activity of their employers. If you need the protection of whistleblower laws or have additional questions about qui tam actions, you may also need to consult an experienced attorney to ensure that your legal rights are protected according to the law.

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