The recently improved False Claims Act (“FCA”) anti-retaliation provision provides expanded coverage to whistleblowers. Even when the underlying FCA qui tam action might not take flight, the retaliation suit is finding firm ground in most courts across the country.

Until the FCA was amended in 2009 and 2010, FCA anti-retaliation protections were largely reserved for the few whistleblowers who, in effect, took visible, proactive steps to file a qui tam action against their employers. For the typical whistleblower, however, attempts to obtain anti-retaliation redress were too often rejected by the courts.

In 2009, Congress amended the FCA anti-retaliation provision by broadly defining the scope of protected activity. The new language makes clear that the provision not only protects actions taken in furtherance of a potential or actual qui tam action, but also steps taken to remedy fraud through other means.

The relevant legislative history states that protection applies to “steps taken to remedy the misconduct through means such as internal reporting to a supervisor or company compliance department and refusals to participate in the misconduct.” 155 Cong. E1295, E1300 (daily ed. June 3, 2009) statement of Cong. Berman).

Since then, courts have found that the mere act of raising concerns internally is sufficient to trigger FCA anti-retaliation protections. As one court noted, under the new FCA, “the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected conduct.” Manfield v. Aluiiq Int’l Solutions, Inc., 851 F. Supp. 2d 196, 204 (D. Me. 2012).

The end result is that more FCA anti-retaliation cases are now moving forward, and employers are paying millions of dollars in back pay to wronged Medicare fraud and other whistleblowers.

More information for whistleblowers is located at the Nolan Auerbach & White website.