What is the FCA, and when does the FCA protect employees?
The FCA is a federal statute originally enacted in 1863 in response to defense contractor fraud during the American Civil War. The FCA has been amended many times since it was enacted. In 2009 and 2010, Congress amended the FCA’s retaliation provision.
Now, in addition to protecting employees who take steps “in furtherance of” a lawsuit under the FCA, the retaliation provision also protects employees who engage in “efforts to stop 1 or more violations” of the FCA. In other words, the amendments expanded retaliation coverage to at least some employees who make “efforts to stop” FCA violations, even if those efforts do not lead to a lawsuit or to the “distinct possibility” of a lawsuit.
How does an employee bring an FCA retaliation claim against his or her employer?
To establish a prima facie case of retaliation, the employee must show (1) that the employee engaged in protected conduct under the False Claims Act, (2) that the employer knew the employee engaged in such conduct, and (3) that the employer retaliated against the employee by taking an adverse employment action against the employee because of the protected conduct. Moreover, the employee’s protected conduct must have been the “but-for cause” of the adverse employment action, meaning that the employee would not have suffered the adverse employment action but for the employee having engaged in the protected conduct.
Protected conduct includes actions taken by the employee “in furtherance of” a lawsuit under the FCA, as well as “efforts to stop 1 or more violations” of the FCA. This includes bringing the potential FCA violation to the employer’s attention and trying to stop or correct the violation. Significantly, the employee need not be correct in their reasonable belief that an FCA violation is occurring in order to be protected from the employer’s retaliation.
Once the plaintiff makes out a prima facie case, the burden shifts to the employer to articulate a non-retaliatory reason for the adverse employment action. If the employer does so, the burden shifts back to the employee to show that the employer’s reasons are pretext and designed to cover up the retaliation.
If you believe that your employer has retaliated against you because you engaged in conduct protected by the FCA, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.
Samantha J. Heuring