False Claims Act Anti-Retaliation Provision Protects Employees Who Do the Right Thing

“We need to stop lying to physicians about the efficacy of our drug,” said pharmaceutical marketing director, Wally Whistleblower. “Physicians are prescribing our drug off-label based on our lies, and people are dying.”

“Wally, it is clear that your priorities are not properly aligned with ours,” explained senior marketing director, Fred Fraudster. “We are having a layoff of one – you!”

Until the False Claims Act was amended in 2009 and 2010, Wally Whistleblower may not have been protected by the FCA’s anti-retaliation provision. Under the old statutory language, the employee need to show that he or she was taking actions “in furtherance of” a qui tam action. If the employee could not show that he was taking steps toward a qui tam action, the employee was, by and large, out of luck.

This all changed with the False Claims Act Amendments, which broadened the “protected conduct” to include actions taken by the employee to stop fraud from happening, as opposed to going further, to take steps toward a qui tam  action.

This should be welcome news to the Wally Whistleblowers of the world, who valiantly try to stop their employers from doing the wrong thing.

 

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