Tread Carefully When Disciplining Employees Who Have Blown the Whistle

The False Claims Act (FCA) has become the federal government’s primary weapon in combating fraud and abuse. However, most FCA cases are initiated not by the government but private individuals filing whistleblower claims on its behalf. In many cases, whistleblowers are employees who believe their company has defrauded the government. The FCA prohibits retaliation against whistleblowers—such as firing, suspending or demoting employees who bring a qui tam claim or take other action to try to stop an FCA violation. But protection from retaliation doesn’t give whistleblowers blanket immunity from discipline or bar labs from legitimately enforcing their work rules and policies.

Employees must prove four things to succeed in retaliation claims. Labs can defend themselves by refuting any one of these four: 1) the employee must have engaged in activity protected by the False Claims Act—such as, bringing a qui tam action or trying to stop an FCA violation; 2) the employer must know about the protected activity; 3) the employer must take adverse employment action against the employee; and 4) the adverse action was taken because of the protected activity.

Lab managers must be prepared to deal with employees who remain at their jobs after blowing the whistle, without crossing the line between legitimate discipline and illegal retaliation. The May issue of G2 Compliance Advisor explains what labs need to know about the four elements of FCA anti-retaliation claims and provides five steps to protect the lab. See “Compliance Perspectives, After the Whistle Blows: Disciplining Whistleblowers without Committing Retaliation,” G2 Compliance Advisor, May 2016, p. 5.