Protection for Whistleblowers 2018-04-06T14:12:30+00:00

Protection for Whistleblowers

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Filing a whistleblower lawsuit to fight fraud can be a difficult decision. It takes courage to bring a whistleblower claim and there can be some risks involved. Despite these risks, whistleblowers motivated by a desire to protect the integrity of government programs are encouraged to step forward to help ensure that those who defraud the government are held accountable.

The government recognizes the importance of whistleblowers and has passed laws to not only provide them with financial rewards for bringing fraud allegations to the government’s attention, but to also protect them from retaliation by  the entity (or entities) named in the allegations. The False Claims Act and the Whistleblower Protection Act are two federal laws that provide whistleblowers with the means to sue on the government’s behalf if fraud is suspected and defend them against retaliatory acts by their employers.

The False Claims Act

The False Claims Act (FCA), as codified in Title 31 (Subtitle III, Chapter 37) of the United States Code, allows a private citizen to file a whistleblower lawsuit against a company that is suspected of cheating the government. If the government intervenes in the whistleblower lawsuit and  recovers money in a  successful enforcement action, the whistleblower is entitled to a share of the recovered sum as a reward.

The FCA also contains a section entitled “Relief from Retaliatory Actions,” which states that if an employee, contractor or agent is “discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment” in retaliation for legal acts of whistleblowing, they are entitled to relief ordered by the court. This relief may include rehiring, a restoration of the employee’s seniority status, two times their back pay plus interest, compensation for any other damages suffered as a result of the retaliation, and/or the payment of litigation costs and attorney fees.

Whistleblower statutes of limitations can vary from state to state. Generally speaking, a typical statute starts from the time an employee learns that he or she will be retaliated against, not their last day of employment. States have different statutes of limitations governing common law wrongful termination lawsuits. For more information, see our Whistleblower Laws by State page.

Whistleblower Protection Act

The Whistleblower Protection Act (WPA) and the later Whistleblower Protection Enhancement Act (WPEA), codified in Title 5 of the U.S. Code, applies specifically to certain federal government organizations and employees. The Act permits certain whistleblowers who believe they have been subjected to retaliation to bring their complaints directly before the Merit Systems Protection Board (MSPB), a federal agency that is authorized to adjudicate complaints brought by federal whistleblowers and issue orders to protect them from harassment.

Federal employees who disclose wrongdoing do not automatically qualify for MSPB protection, as several requirements must be met. According to the MSPB, a whistleblower must;

  • “Disclose conduct that meets a specific category of wrongdoing set forth in the law.”
  • “Make the report to someone other than the wrongdoer.”
  • “Suffer a personnel action, the agency’s failure to take a personnel action, or the threat to take or not take a personnel action.”

The whistleblower must also demonstrate a connection between their disclosure and the retaliatory actions taken against them. They are denied relief if the government agency can establish by “clear and convincing evidence” that it would have taken the same personnel action even if the employee had not engaged in whistleblowing.

These requirements and others suggest that government whistleblowers may face challenges in receiving federal protection. In an article for the William and Mary Policy Review, Robert McCarthy,  a former clinical law professor at the University of Washington, argues that “the MSPB has rejected the vast majority of whistleblower appeals that have come before it, as has the Federal Circuit Court of Appeals.” It is therefore vital that anyone bringing a whistleblower lawsuit as a federal employee be represented by a skilled whistleblower attorney familiar with federal law in this area.