Whistleblower Protection Against Retaliation

Frequently, one of the biggest deterrents for potential whistleblowers is the fear of employer retaliation.  Realizing this concern, Congress amended the False Claims Act in 1986 to include provisions protecting employee-whistleblowers from retaliation.  Congress further strengthened those provisions in 2009 by extending protection to contractors and agents who might not have a formal employment contract, and again in 2010 by extending protection to whistleblowers’ friends and family:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under [the False Claims Act] or other efforts to stop 1 or more violations of [the False Claims Act].  31 U.S.C. § 3730(h)(1).

In order to prevail in a False Claims Act employer retaliation case, the whistleblower must prove that he or she engaged in conduct protected by the False Claims Act, that the employer knew of his or her conduct, and that the employer took actions against the whistleblower because of that conduct.

The False Claims Act’s retaliation provision may deter retaliation by employers who know that punishing whistleblowers for protected conduct can expose the employers to substantial monetary damages.  Under the False Claims Act, the relief accorded to the whistleblower:

shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, 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).

The Internal Revenue Service (IRS) recently established regulations that provide rewards for whistleblowers who notify the IRS about tax evasion.  Under these regulations, the IRS promises to “protect the identity of the whistleblower to the fullest extent permitted by the law.”  If revealing the whistleblower’s identity is essential in continuing the investigation, the IRS “will inform the whistleblower before deciding whether to proceed.”  IRC Sec. 7623.  By protecting the identity of whistleblowers, these regulations help to shield them from employer retaliation.

In addition to the False Claims Act, and the IRS whistleblower provisions, there are other federal and state laws designed to protect whistleblowers.  Although there are always risks associated with exposing an employer’s illegal conduct, the laws attempt to ensure that whistleblowers are protected from retaliation.