The False Claims Act includes a provision which protects whistleblowers from retaliation from their employers. The Anti-Retaliation provision of the FCA prohibits an employer from retaliating against an employee “because of lawful acts done by the employee . . . in furtherance of an action.” 31 U.S.C. §3730(h).
Prohibited retaliation includes: termination, suspension, demotion, harassment or any other discrimination in the terms and conditions of employment. In order to prevail, an employee must prove: (1) that the employee took action in furtherance of an FCA action; (2) that the employer knew about these acts; and (3) that the employer discriminated against the employee because of such conduct.
No Requirement to File a False Claims Act Lawsuit
An individual may receive whistleblower protection regardless of whether a whistleblower lawsuit has been filed under the False Claims Act. Conducting an investigation without knowledge of the existence of the False Claims Act is still considered “in furtherance of” an action. This is to protect from retaliation those who plan to file a case, and take action in furtherance of a case, but for whatever reason never actually file an FCA action.
Damages Under the Anti-Retaliation Provision
The False Claims Act’s Anti-Retaliation provision may deter employers who know that punishing whistleblowers for protected conduct can expose the employers to substantial damages. Under the FCA, the relief from retaliation includes reinstatement with the same seniority status, two times back pay plus interest “and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.” 31 U.S.C. § 3730(h)(2).