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Does the Whistleblower Have to Quit Their Job?
The whistleblower does not have to quit a job, but they usually do. Most of the time, for whistleblowers submitting a qui tam, it is not the most comfortable place to be. They are not happy with their working environment anyway. They typically like to move on to somewhere else for a job. That usually happens one way or the other, but there is no law that says a whistleblower must leave their job to be a False Claims Act plaintiff relator. On the contrary, if they are fired for becoming a plaintiff-relator, they would have the right to sue under the False Claims Act.
Employee Contracts Impact on a Qui Tam Suit
Non-disclosure, non-compete, and non-solicitation agreements can impact a suit. How it impacts gets complicated and requires a review of the law and the specific agreement when it was signed. However, there are public policy protections to be able to sue under the False Claims Act.
In pursuing a False Claims Act case, one is not providing information to a commercial competitor, which is the usual background for many non-disclosure agreements. But if there is a settlement for terminating the employment relationship, and there are agreements pursuant to that, it can impact it. This is an area that requires counsel and the relator to review prior to filing a case.
In addition, the Securities and Exchange Commission has taken an aggressive posture towards these types of restrictions and thus far has been successful in implementing the idea that one cannot be prevented from reporting securities fraud to the SEC.
If there is an employment agreement between the employer and the employee, and the employer and the employee have settled their relationship pursuant to some sort of negotiated agreement, it can impact a case. There is case law that says a pre-filing release should not happen under the False Claims Act in some jurisdictions, but it is a scenario that needs to be reviewed.
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Both the whistleblower and the lawyer have to spend quite a bit of time reviewing the allegations, trying to determine if in fact the allegations create liability under the False Claims Act. That entails reviewing the law and the regulations, and each False Claims Act case tends to involve a different area of the government with its own distinct set of regulations.
On top of that, they need to make a kind of a business decision. They may have to consider if there is enough money at stake to make the government be interested in the case, or to be worthy of the whistleblower’s time to pursue it. Sometimes, if for example, there is a significant safety issue at stake that issue may not matter. They have to review all that and it requires a fair amount of review between the whistleblower and their attorney, and the attorney has to be someone the whistleblower is willing to talk to about all this and provide as much candor as they can about what they know and what they do not know. They have to try to get a handle on what the actual allegations may be to determine the strength of the case is worth pursuing. The more the whistleblower and their attorney can discuss these issues and learn about these issues, the better in terms of determining whether the case is worth pursuing and then pursue it if it is.
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