We Only Represent Government Contractors: After employees of government contractors report fraud, the employer cannot attempt in any way to punish them. As a federal contractor, you can easily find yourself facing a False Claims Act retaliation lawsuit. Not only will you have to deal with the initial Qui Tam investigation or lawsuit with the DOJ, SBA OIG or some other agency, but you also have to face more exposure in litigation.
The government contract False Claims Act whistleblower retaliation defense attorneys at Watson & Associates, LLC defend federal contractors facing False Claims Act retaliation lawsuits. With law offices in Denver, Colorado and Washington. D.C. our main focus in federal government procurement. We understand that violation of the false claims statute is very serious. We work with local defense counsel and represent clients across the United States and overseas.
What is Whistleblower Retaliation?
Whistleblower retaliation, under 31 u.s.c. § 3730 by government contractors refers to adverse actions taken against individuals who report or disclose wrongdoing, fraud, or other illegal activities within a company that has a contract with a government agency. These individuals, known as whistleblowers, come forward to expose misconduct or violations of laws or regulations that may harm the government, taxpayers, or the public interest.
Under the whistleblower provision of the federal False Claims Act, whistleblowers may report various types of misconduct, such as contract fraud, billing irregularities, false claims, product defects, safety violations, environmental violations, or conflicts of interest. Whistleblower protection laws aim to encourage individuals to speak up by shielding them from retaliation or adverse employment actions for their disclosures.
Government contractors are expected to comply with laws and regulations and maintain the integrity of the contracting process. When a whistleblower reveals information about wrongdoing, it can be damaging to the contractor’s reputation, potential contract awards, or financial interests. However, it is illegal for government contractors to retaliate against whistleblowers by taking actions such as termination, demotion, harassment, or other forms of discrimination in response to their protected disclosures.
To protect whistleblowers from retaliation, several laws exist, such as the False Claims Act, the Whistleblower Protection Act, and the Sarbanes-Oxley Act. The False Claims Act retaliation provisions provide avenues for whistleblowers to report misconduct confidentially and seek legal remedies if they face Qui Tam retaliation. Whistleblowers may file complaints with government agencies, such as the Department of Labor or the Office of Special Counsel, or they can take legal action through the court system to seek compensation for damages and reinstatement if they have been wrongfully terminated or mistreated.
Common False Claims Act Whistleblower Retaliation Claims
If you are a federal government contractor, FCA Qui Tam retaliation lawsuits can be launched for a variety of reasons. If the reporting of fraud brings the contractor within the purview of any of the below points, having a Whistleblower retaliation defense attorney beneficial. See also 31 USC 3729. At Watson, our bread and butter is representing clients that are federal contractors. We understand the frustration seen when relators or other whistleblowers bring lawsuits. The following actions are considered False Claims Act violations, for which a Qui Tam whistleblower lawsuit could be launched action: The relator who alleges that you were:
- Knowingly presenting (or causing to be presented) to the Federal Government a false or fraudulent claim for payment;
- Knowingly using (or causing to be used) a false record or statement to get a claim paid by the Federal Government;
- Conspiring with others to get a false or fraudulent claim paid by the Federal Government:
- Knowingly using (or causing to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the Federal Government.
How is the False Claims Act Retaliation Provision Applied?
The anti-retaliation provision of the False Claims Act protects government contractor employees, contractors and other agents of a company from being “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 the employee, contractor, or agent investigated, threatened to report, actually reported or sought to stop the company from engaging in actions that can defraud the United States government.
What Does the Whistleblower Have to Prove in a False Claims Act Retaliation Case?
When defending against a Whistleblower False Claims Act retaliation case, be mindful that the employee only has to prove that you, the employer retaliated against the employee, another contractor, or other agent in violation of 31 USC 3730(h). The whistleblower must show that: (1) she engaged in protected activity; and (2) that she was discriminated against because of her protected activity.
When the Plaintiff (Relator) engages in “protected activity” in the context of False Claims Act Qui Tam retaliation, there would at least be some opposition shown. The Whistleblower must show that she was discriminated against “because of” conduct in furtherance of a False Claims Act suit. There must be proof that the company had knowledge about the protected activity and that its retaliation was motivated, at least in part, by the individual’s engaging in protected activity. An employee, contractor, or agent may bring his or her FCA retaliation claim in U.S. federal district court and has up to three years after the date of the retaliation to initiate litigation. See information about three defenses for criminal liability for government contractors.
False Claims Act Retaliation Statute of Limitations
The statute of limitations for a Qui Tam Whistleblower is either (a) six years from when the fraud is committed, or 2) three years after the United States knows or should know about the material facts, but not more than 10 years after the violation.
Therefore, in any situation, the FCA statute of limitations should not be more than 10 years. Under 31 USC Subsection 3731(b)(2), the feds can bring an FCA action within up to 10 years of an FCA violation, provided that the lawsuit is filed within three years of the date that “the official of the United States charged with the responsibility to act in the circumstances” knew or reasonably should have known of the facts material to the right of action.
The Whistleblower False Claims Act retaliation statute of limitations is three years. Contractors should be also aware that there is a first-to-file-rule where only the first whistleblower to file has access to recoup the 15-30% share allowed under the False Claims Act. Therefore, companies should immediately seek consultation from government contractor defense counsel that also focuses on False Claims Act defense.
Can the employer have other reasons to terminate or act besides the whistleblower activity? In a Whistleblower retaliation case, retaliation occurs when federal courts require relator to prove that “but for” the fraud reporting or “protected activity” he or she would not have been fired. These are all factual reasons where our False Claims Act whistleblower retaliation defense attorneys can help.
How long does the relator have to file claim with the DOL? The whistleblower has just 180 days from the retaliatory act to file their claim with the Department of Labor. This can be a defense for whistleblower retaliation claims.
What happens if the Whistleblower talks about the case even though filed under seal? As a government contractor, if you have found out that the relator / whistleblower has spoken to an outside about the case or disclosed that they filed a case, it could be grounds for dismissal. Depending on the court, breaching the “sealed” ruled could cause the case to be dismissed.
Government Contractor Whistleblowers Under 41 USC 4712: Under the National Defense Authorization Act (NDAA), 41 USC 4712, and various federal government agency-specific statutes, government contractor employees have whistleblower retaliation protection for government contract fraud, gross mismanagement, violating FAR and SBA small business regulations and other protected activity.
Anti-Kickback Statute [42 USC 1320a-7b(b)]
The Anti-Kickback Statute, under 42 USC 1320a-7b is a criminal law that prohibits the knowing and willful payment of “remuneration” to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients). Remuneration includes anything of value and can take many forms besides cash, such as free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies.
Taking Kickbacks in construction or service contracts is also protected. 42 USC 1320a-7b also covers the payers of kickbacks that offer or pay remuneration. When government personnel receive kickbacks or solicit kickbacks will be implicated. Whistleblowers can play a huge part in bringing criminal fraud claims against the contractor. Retaliation can also be another charge that the employer must face. At Watson & Associates, LLC our government contract fraud and whistleblower retaliation lawyers can help with criminal charges and investigations regarding the Anti-kickback Statute.
The Public Disclosure Bar – What is it And How Can be Used as a Legal Defense?
The most common affirmative legal defenses to qui tam whistleblower lawsuits is the “public disclosure bar.” See 31 usc 3730 (e)(4), this provision profits whistleblower lawsuits that are based on publicly disclosed information. “Public disclosure” occurs when the primary information is disclosed in a criminal, civil, or administrative hearing; in a congressional, administrative or GAO report, hearing audit or investigation; or in the news media. See US Supreme Court in Rockwell Int’l Corp. V. United States (2007) 549 U.S. 457. The court ruled that the public disclosure bar is jurisdictional, thus stripping courts of jurisdiction where the relator’s information has been publicly disclosed.
Call Watson & Associates’ False Claims Act Whistleblower Retaliation Defense Lawyers
If you are a federal government contractor, or healthcare provider facing a False Claims Act whistleblower and False Claims Act retaliation lawsuit, please call our federal contractor fraud defense lawyers for a Free and Confidential Initial Consultation. Call Toll-Free 1.866.601.5518.