Understanding Retaliation Claims

Can a whistleblower lawyer help file claims against those who retaliate against their client?

Answer: Sure. The federal False Claims Act has an anti-retaliation provision under 31 U.S. Code Section 3730(h); lawyers sometimes refer to them as “H claims.” If you’re retaliated against in the course of attempting to stop or do something to confront your management about the underlying fraud, you can file for damages for retaliation, as part of a formal False Claims Act or whistleblower case. That can be helpful because these cases are tricky if you’re trying to file for retaliation under another law and the facts of your False Claims Act case come up in that other action. Sometimes, it is best to sue for retaliation within the False Claims Act and its anti-retaliation provisions. The damages that you’re allowed to sue for are pretty good – two times back pay, reinstatement damages, special damages, attorney’s fees – they’re pretty good damages to be able to sue for as part of a False Claims Act case and any anti-retaliation action.

There are other whistleblower laws out there that also provide for a whistleblower to sue for retaliation of one kind or another. They can be very appropriate, depending on the facts of the case and whether or not there is a False Claims Act qui tam action that you can claim.

Whistleblowers do have different options in order to sue for retaliation, depending on the case and circumstances. There are anti-retaliation provisions under the new Dodd-Frank legislation, as well, and several others. There are a lot of anti-retaliation whistleblower laws now. There’s analysis as to whether or not it’s worthy to pursue if you don’t have a good case initially, but there are certainly laws out there to help whistleblowers in a variety of different ways.

What types of actions by an employer could be considered retaliation against a whistleblower?

Answer: Usually they wind up firing [the whistleblower]. I’ve had cases where clients have been called various names, which might bring into mind discrimination claims. At any type of workplace, harassment can result from a whistleblower blowing the whistle, as well as loss of pay, loss of bonuses, loss of benefits, or loss of promotions. Any of that is conceivably actionable under an anti-retaliation provision.

The reality, though, is that whistleblowers who blow the whistle internally about fraud or something that rises to the level of a False Claims Act case, usually wind up getting fired. That’s usually the starting point of figuring out what the damages to that whistleblower are for retaliation.

There is a whole different area of whistleblower law for federal employees and what they do to them, because they never fire them, they just destroy their career.

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