Whistleblowers Need to Know About This Key Legal Protection

You may not know this, but anti-retaliation provisions in the False Claim Act protect employees who were fired after their employer found out that the employee had been a whistleblower in a qui tam action against a previous employer. Put simply—your current employer can’t fire you because you filed a whistleblower lawsuit against your former employer.

Matthew Cestra was hired by drug manufacturer Mylan Inc. in early 2011. During his first couple of months working as vice president of marketing, Cestra’s performance reviews said things like “exceeds expectations.”

Cestra would be fired in May of the same year. The company’s explanation: poor performance “over the last few weeks.” It makes you wonder—how was Cestra able to surpass expectations on the job, then take a such a dramatic performance nosedive so quickly?

According to Cestra, he wasn’t fired because of poor performance—he was fired because months after Mylan hired him, the company learned that he had filed a qui tam lawsuit against his previous employer, Cephalon Inc., now a subsidiary of Teva Pharmaceuticals. In that lawsuit, filed in 2010, Cestra claimed that Cephalon submitted thousands of false claims to Medicare and Medicaid for off-label uses of two of the company’s drugs.

After Cestra’s name became public in connection with the Cephalon lawsuit, he claims that his superiors created a hostile work environment before he was finally shown the door. He later filed a lawsuit against Mylan in Pennsylvania, claiming his termination violated anti-retaliation provisions of the False Claims Act.

Mylan fought the lawsuit and moved to have it dismissed by claiming it couldn’t be responsible under 31 U.S.C. §3730(h)(1) of the False Claims Act because it was not investigated for any violations of the False Claims Act and was unaffiliated with Cephalon. The statute protects “persons who assist the discovery and prosecution of fraud and thus to improve the federal government’s prospects of deterring and redressing crime.”

The Pennsylvania court sided with Cestra, claiming that he possessed a cause of action. His suit will move forward.

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