Whistleblower Protection
Serving Clients Nationwide
To encourage individuals of conscience to report unlawful activity under the False Claims Act, certain legal protections are afforded to whistleblowers. The two most important protections are the protection from retaliatory action and the provision of conditional anonymity.
Protection from Retaliation
Subsection (h) of the False Claims Act provides legal grounds for litigation against the whistleblower’s employer or former employer if he or she was discharged, demoted, suspended, threatened, or harassed by his or her employer in retaliation for pursuing a qui tam claim. Legal action based on subsection (h) is separate from the original qui tam suit and damages recovered are owed directly to the whistleblower; no percentage of the damages is taken by the government.
Therefore, it is crucial that you inform your attorney at the start of the case if there is any potential for a subsection (h) claim. Furthermore, your qui tam lawyer should be informed of any change in your employment status during the investigation or prosecution of the case so that your original Complaint can be amended to include a subsection (h) claim.
Employers who violate subsection (h) are liable for “special damages” the whistleblower suffers due to retaliation, twice the back pay owed with interest, and reinstatement without loss of seniority. Sometimes subsection (h) claims are litigated or settled well after a settlement has been reached in the original Complaint. This means that you should have a qui tam attorney that can pursue subsection (h) damages without assistance from the Justice Department.
Conditional Anonymity
Qui tam complaints remain under seal for a minimum of 60 days, during which time the whistleblower’s identity remains confidential and the contents of the Complaint are only made known to the Court and to government investigators. As long as the investigation continues, the government often requests that the seal be extended in order for the whistleblower to retain anonymity until the investigation is complete. Investigations into False Claims Act violations can often last for two to three years, but the whistleblower’s anonymity and the seal on the Complaint are not guaranteed to last beyond the 60 day minimum.
The defendant is not informed of the qui tam Complaint’s existence until the seal is lifted. However, defendants often learn of the investigation and the complaint through other means before that time.
If the government, through the Department of Justice, decides to intervene in the qui tam action, the Complaint is served on the defendants, who then learn the identity of the whistleblower. If the Department of Justice does not join the case or intervene, the whistleblower may continue litigating without government assistance or give up the case.
If a whistleblower decides to continue litigation after the government has declined to participate, the seal on the Complaint will be lifted and the Complaint served on the defendant. However, if the whistleblower discontinues litigation, the Complaint could potentially remain sealed, maintaining the anonymity of the whistleblower and preventing the defendant from discovering the Complaint. Even if the seal is lifted after the case is dropped, the Complaint will be a document in the public record and will not be served on the defendant. In this case, the defendant may never learn the whistleblower’s identity.
If the government attempts to negotiate a settlement with the defendant, the Department of Justice may request a court order to partially unseal the Complaint. Generally, in these cases the whistleblower’s identity can be redacted from the documents provided to the defendant. However, depending on the nature and specificity of the Complaint, the defendant may infer or deduce the identity of the whistleblower.
No whistleblower should file a Complaint expecting permanent or even long-term anonymity. Usually, the whistleblower’s identity is kept secret for a temporary period after the Complaint is filed. In successful qui tam cases, the whistleblower’s identity is always revealed once a judgment or settlement is reached. While there can be no guarantee of anonymity after the conclusion of an unsuccessful qui tam action, the whistleblower often remains undiscovered by the defendant or the public.
If you have knowledge of a fraud or false claim against the government, please contact our qui tam lawyers today. Kenney & McCafferty attorneys will consult with you about your case, without obligation. All communications with Kenney & McCafferty attorneys during these consultation services are confidential and protected by the attorney-client privilege.
