It is important to hire competent False Claims Act counsel to protect you from employer retaliation.
The Federal False Claims Act and those states that have passed state-level FCA statutes rightly incentivize whistleblowers to step forward and help stop and prevent fraud against taxpayers and public funds. Various other federal agencies not covered by the FCA have instituted their own whistleblower programs to do the same, such as the Internal Revenue Service (IRS) and U.S. Securities and Exchange Commission (SEC).
Media headlines document the millions and sometimes billions of dollars that are recovered under these respective statutes and programs. However, the practical realities of being a whistleblower are not glamorous or easy. The majority of cases result in no financial rewards for the would-be whistleblower attempting to do right.
Courage and Sacrifice: The Truth About Whistleblowers
We see it in our practice daily; someone reaches out to our office because they know of wrongdoing at their job. They may work in a hospital, specialty practice, or for a government contractor doing work on behalf of the government or selling products to government agencies. Something fishy is going on, so they report it to a supervisor or other superior. Nothing is done by management and the employee has decided to call a lawyer to discuss.
(Important note here to would-be fraudsters: Take employee internal complaints seriously. In most, if not all, of the cases we file under FCA or state statutes, had the employer done right by the whistleblower when the wrongdoing was internally reported, there would be no case filed.)
By the time a whistleblower calls our office, the individual has made a tough and courageous decision to put their career on the line for the right reasons. Unfortunately, doing the right thing sometimes results in losing that job. The employer may decide to fire the whistleblower, making them potentially liable under the anti-retaliation provisions of the False Claims Act. Or, the whistleblower decides that they do not want to work for a fraudster anymore.
This isn’t always the case. Sometimes, if the government declines to intervene in an action, we can quietly dismiss the case so the employer is none the wiser. The whistleblower is never found out and can continue their employment. But it is a reality for whistleblowers that if their case is successful or otherwise discovered by the defendant, their employment is often going to end one way or another (hopefully with a healthy severance). IRS and SEC whistleblowers have better opportunities to file anonymously so that they are not discovered by the defendants.
While we pride ourselves in taking cases that other lawyers may not, we cannot represent every potential client who calls. Some simply do not have information worthy of filing a federal or state court lawsuit. But that does not mean the conduct complained of isn’t wrong. It also doesn’t mean they won’t face the same retaliation as someone who successfully files a qui tam case. It is, unfortunately, the reality of being a person of integrity in a company or industry that may not mirror that integrity.
Whistleblowing Can Jeopardize Your Job
Even when a whistleblower has a litany of information regarding a large-scale fraudulent scheme, the path is perilous. The government investigation and recovery could take years or even a decade. During that time, the case is under a court-ordered seal and consequently cannot be discussed or even mentioned. An employer can guess that an employee is a whistleblower and fire them.
The individual is then in a difficult spot when interviewing for new positions: they cannot explain to potential employers what occurred, lest they violate that court-ordered seal and jeopardize the entire case. Meanwhile, the former employer may disparage the whistleblower and blackball them to prevent them from obtaining new employment.
This very scenario played out in a recent case of ours. My colleague, Julie Bracker, marvelously argued before the United States Court of Appeals for the Sixth Circuit that a guilty employer should not be allowed under the anti-retaliation provisions of the FCA to continue to retaliate against a former employer/whistleblower after the employment is terminated. As the law stands now, it is unclear if former employees are covered under those provisions.
We take our role as counselors and advisers seriously. When representing a whistleblower, it is important to know the perils of this path before the long journey begins. It is not uncommon when faced with the perils and risks associated with filing a False Claims Act case that a would-be client elects to move on without taking those risks. Or, clients take many years before they are willing to come forward, explaining that they couldn’t afford to lose their job.
We completely understand the realities of life; I have no problem telling someone that I don’t think a particular situation justifies taking on that risk.
Get Help Exposing Fraud and Corruption
There are other ways to alert the government of potential wrongdoing besides a federal lawsuit under the FCA. Many government agencies have anonymous fraud hotlines or other mechanisms to reach out to their respective Offices of Inspector General (OIG). Although you won’t receive an award for making reports without filing a False Claims Act case, you also don’t face the same risks of being exposed.
Whistleblowing is hard. It is fraught with risk, isolation, and frequent retaliation. It is why the FCA incentivizes whistleblowers to come forward. No one would do it otherwise. Please contact Bracker & Marcus LLC if you are considering blowing the whistle.