Archive for the ‘Retaliation’ Category

Reform Could Increase Payouts to Whistleblowers

New financial reform legislation before Congress would allow an increase in multi-million dollar awards to whistleblowers. Ideally, this would create an environment where companies are pressured to report misconduct earlier and where whistleblowers will see the reward in bringing fraudulent activities to light.

Under the new law, the Securities and Exchange Commission would be required to award whistleblowers 30 percent of the total retribution or settlement gained from prosecution of the fraudulent company.

The False Claims Act had similar goals, although without the minimum reward requirement that would offer whisteblowers and lucrative and tangible incentive to report their company’s wrongdoings. Many experts agree that this type of incentive would go a long way toward convincing wary potential-whistleblowers who are afraid of losing their jobs or facing similar retaliation from the company they report. With significant financial incentive, blowing the whistle on misconduct gets a little easier.

Learn how the qui tam attorneys at Berg & Androphy have recovered hundreds of millions for the government and whistleblowers.

Posted in Federal False Claims Act, Qui Tam Litigation, RetaliationNo Comments

Economic Stimulus Bill Includes Whistleblower Protections

By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz

Senator Claire McCaskill’s whistleblower protection amendment to the American Recovery and Reinvestment Act of 2009 includes provisions to ensure that employees are able to disclose waste, fraud, or mismanagement related to stimulus funds.  The protections afforded by the McCaskill Amendment are in addition to the whistleblower protections provided by the False Claims Act.  The McCaskill Amendment applies to state and local governments, private contractors, and other non-Federal employers receiving a contract, grant, or other funds made available by the economic stimulus bill.  The McCaskill Amendment protects employees that disclose information, either to a supervisory authority over the employer or to another employee that has the authority to investigate misconduct, that the employee reasonably believes is evidence of:

  • gross mismanagement of an agency contract or grant related to stimulus funds;
  • gross waste of stimulus funds;
  • a substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;
  • an abuse of authority related to the implementation or use of stimulus funds; or
  • a violation of law, rule, or regulation related to an agency contract or grant relating to stimulus funds. 

Furthermore, disclosures made by employees in the ordinary scope of employment are also specifically protected.  Any employee engaged in protected conduct is protected against retaliation by the employer, including discharge, demotion, or other discrimination.  If an employee suspects that he or she has been retaliated against for engaging in protected conduct, the employee must file a complaint with the appropriate inspector general.  As currently written, the McCaskill Amendment provides no statute of limitations to file this complaint.  In order for an employee to establish a retaliation claim under the McCaskill Amendment, the employee is only required to prove that the protected conduct was a “contributing factor.”  While an employee is required to exhaust all administrative remedies first, the McCaskill Amendment expressly provides that pre-dispute arbitration agreements are not binding for claims brought under the Amendment. If the employee prevails, the employee is entitled to reinstatement, back pay, compensatory damages, attorneys’ fees, and litigation costs. 

Posted in Damages, Retaliation, Statute of LimitationsNo Comments

FCA Does Not Prohibit Compelled Arbitration of Retaliation Claims

 By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz         

A district court in the Southern District of Texas recently held that nothing in the text of the FCA or its legislative history prevents employment-related retaliation claims from being arbitrated under a valid and enforceable arbitration agreement.  Under the Federal Arbitration Act, a valid agreement to arbitrate certain disputes is valid and enforceable unless Congress has precluded arbitration of the statutory right at issue.  The relator argued that the FCA precludes arbitration of retaliation claims because arbitration of such claims would allow defendants to immunize themselves against relator-initiated claims of FCA violations, undermining the purpose of the FCA to protect whistleblowers.  The relator further argued that such arbitration proceedings could constitute public disclosures, thereby unfairly triggering the public disclosure bar.  The court reasoned, however, that relators can avoid this issue by filing their retaliation claims with or after the qui tam claims.  The case is United States ex rel. Cassaday v. KBR, Inc.

Posted in False Claims, Jurisdictional Issues, Public Disclosure Bar, RetaliationNo Comments

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