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The Law: An Overview
False Claims Act Whistleblower Employee
Protections
In 1986, Congress added anti-retaliation protections to the False
Claims Act. These provisions, which did not exist previously, are
contained in 31 U.S.C. Sec. 3730(h):
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms
and conditions of employment by his or her employer because of
lawful acts done by the employee on behalf of his employer or others
in furtherance of an action under this section, including
investigation for, initiation of, testimony for, or assistance in an
action filed or to be filed under this section, shall be entitled to
all relief necessary to make the employee whole.
The protection against retaliation extends to whistleblowers whose
allegations could legitimately support a False Claims Act case even
if the case is never filed. The statute of limitations for Sec. 3730(h)
claims is 6 years in most jurisdictions, but is currently shorter in
California and a few other locations.
The whistleblower plaintiff is entitled to reinstatement with
seniority, double back pay, interest, special damages sustained as a
result of discriminatory treatment, and attorneys fees and costs.
There is federal jurisdiction for these whistleblower claims. To
establish a Sec. 3730(h) retaliatory discharge claim, the whistleblower
must engage in conduct protected by the False Claims Act. Second,
the courts require a showing that the defendant have some notice of
the protected conduct that the whistleblower was either taking
action in furtherance of a qui tam action or assisting in an
investigation or actions brought by the Government. Finally, the
whistleblower must show that the termination was in retaliation for
the protected activities. A False Claims Act qui tam case can
include whistleblower claims and other legal claims based upon other state and federal
laws.
Federal and State Whistleblower Laws: An Overview
There are dozens of federal laws protecting whistleblowers or
otherwise designed to protect workers from retaliation or other
illegal treatment. There are also many similar state and local
laws.
Most lawyers are not familiar with the employment laws pertaining to whistleblowing and few will know the laws outside the states in
which they practice. Before making decisions based upon state laws,
you should do some research yourself and consult with an experienced
employment/labor attorney, accustomed to representing plaintiffs, to
inform yourself about the various federal and state laws which might
apply to protect you in your particular circumstances.
Federal Whistleblower Protection Laws
Unlike the False Claims Act, which allows a
whistleblower to file a lawsuit in federal court, many of the
federal whistleblower laws do not permit a whistleblower to go
directly to court, but instead are to be pursued "administratively."
Congress designed many of these laws so that an individual, with or
without an attorney, may make a simple complaint or "charge" of
retaliatory discrimination to a federal government agency. If not
resolved administratively, an administrative law judge may preside
over the only evidentiary hearing that will take place. Some
retaliation and whistleblower statutes are relatively "hollow," that
is, they prohibit illegal employer retaliation, but do not allow the
individual to pursue an administrative charge or file a lawsuit.
In legalese, such laws are described as providing no "private cause
of action."
Whistleblowers are cautioned, however, not to delay investigation of
their possible legal remedies, as many of the laws have very short time
limits. Some federal whistleblower statutes of limitations are as short as
30 days
from the date of the alleged retaliation. A retaliation claim must
be brought to the attention of the appropriate federal government
official within that time period or cannot be pursued.
Many federal whistleblower laws are administered by the U.S.
Department of Labor (DOL). When a complaint is to be filed under
these whistleblower laws, they should be filed in writing with the local OSHA
(Occupational Safety and Health Administration of the Department of
Labor) Office and/or mailed
to:
Office of the Assistant Secretary, Occupational
Safety & Health Administration
U.S. Department of Labor
200 Constitution Ave., N.W .
Washington, DC 20210
However, the 50-plus federal whistleblower and
retaliation laws vary dramatically and the Department of Labor/OSHA
is not the intake office for all such claims. Some retaliation
statutes provide that the EEOC is the proper intake agency. If
neither OSHA nor the EEOC is the proper intake office, however,
filing a claim with those agencies will likely not be sufficient to
protect legal rights. Various federal statutes specify still
other procedures, including some that have no mandatory
administrative or other prerequisites and allow whistleblower or retaliation
lawsuits to be filed directly in state or federal court.
Whistleblower or similar anti-retaliation protections providing a
private cause of action or administrative remedy are also found in
various federal statutes. Click here
to view a list of those statutes. Our list is still "under
construction," but should assist you in researching your own
situation.
In addition, The United States Constitution, pursuant to the First
and Fourteenth Amendments, protects state and local government
whistleblower employees from retaliation.
While they do not
afford any specific whistleblower protections, these other statutes may assist in the prosecution of those who retaliate against
whistleblowers:
18 U.S.C. Sec. 1031 Major Fraud Act of 1989
18 U.S.C. Sec. 1505 Penalties for obstruction of government
investigations
45 U.S.C. Sec. 60 Penalties for obstruction of government agency
proceedings
Additional references on these topics include:
Job Rights & Survival Strategies: A Handbook for Terminated
Employees (National Employee Rights Institute 1997), to order call
1-800-469-NERI. ($19.95, $10 each if bought in groups of 10)
Government Accountability Project, National Office, 1612 K Street,
Suite 400, Washington, D.C. 20006, The Whistleblower's Survival
Guide (1997) and "Federal Whistleblower Laws and Related Statutes."
The National Whistleblower Center also has a new publication,
published in 2001, primarily designed for lawyers handling claims
under various federal whistleblower statutes. It is entitled Concepts and Procedures in
Whistleblower Law.
(Web links to some of the federal
agencies, legal research sources for the federal whistleblower laws
and statutes, and several of the whistleblower groups mentioned
above are listed in the Whistleblowerlaws
Links section.)
State Whistleblower Protection Laws
Most states have some sort of statutory or common law
"whistleblower" or anti-retaliation laws. Like the federal
whistleblower laws, not every lawyer will know about these laws,
especially laws outside their own state.
These states and the
District of Columbia have recognized a public policy exception to
the "employment at will doctrine": Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,
Tennessee, Texas, Vermont, Virginia, Washington, West Virginia,
Wisconsin and Wyoming.
Some states have explicit statutory protections for
whistleblowers. These include: California, Connecticut, Delaware,
Florida, Hawaii, Louisiana, Maine, Michigan, Minnesota, Montana, New
Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode
Island, Tennessee, and Washington.
There are also state laws that offer special protections just for
their own state or local
government employees: Alaska, Arizona,
California, Colorado, Connecticut, Florida, Georgia, Hawaii,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New
Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Washington, West Virginia, and Wisconsin.
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