Retaliation Protection

The False Claims Act includes important provisions to protect whistleblowers from retaliation by their employers for reporting fraud against the government. Under 31 U.S.C. § 3730(h), employees, contractors, and agents who experience retaliatory actions—such as termination, demotion, or harassment—because of lawful acts in furtherance of an FCA case are entitled to seek relief. This may include reinstatement, double back pay, compensation for special damages like emotional distress, and attorneys' fees. The goal of § 3730(h) is to shield individuals from career-related consequences and to encourage them to come forward with information about fraud without fear of retaliation.

In many cases, whistleblowers pursue their retaliation claims as part of the same complaint as their FCA claims, allowing them to seek protection and redress within a single legal action. Since FCA complaints are initially filed under seal to allow the government time to investigate, retaliation claims filed concurrently are also sealed. This sealing can provide temporary confidentiality for the whistleblower but may create practical challenges, as the retaliation claim might not be actionable until the case is unsealed. However, consolidating claims in a single complaint can simplify the legal process and prevent the need for separate lawsuits.

While adding a retaliation claim to the main FCA complaint can streamline the process, whistleblowers should carefully consider potential drawbacks of pursuing an employment claim in parallel with an FCA case. In some instances, retaliation claims require proof and disclosures that could inadvertently affect the main FCA case or alert the defendant prematurely. Additionally, the timeline for FCA cases, particularly under seal, can be lengthy, which may delay resolution of the retaliation claim. Whistleblowers must work closely with their attorneys to weigh these factors, considering whether to file the retaliation claim as part of the sealed FCA complaint or through a separate, publicly filed employment lawsuit.

If successful, a whistleblower’s retaliation claim under § 3730(h) can yield significant financial and career-related relief. The law’s protection against employer retaliation is broad, covering lawful acts such as investigating potential fraud, gathering evidence, or attempting to stop fraudulent conduct. Given the sensitive nature of whistleblower cases, it’s essential for relators and their attorneys to carefully balance the strategic benefits of filing a retaliation claim with the potential impact on the FCA case. In either scenario, § 3730(h) reinforces the FCA’s purpose by ensuring whistleblowers are protected when bringing fraud to light.