Retaliatory Discharge Claims for Government Contractor Employees
Getting fired from a job is a terrible experience. It is especially difficult if you have been discharged because you were engaged in efforts to stop your employer from breaking the law, from violating contracts with the government, or from engaging in unlawful activity that either directly or indirectly led to fraud on the government. In those situations, you may have the right to bring a retaliatory discharge claim or wrongful discharge claim against your employer under a variety of federal or state statutes.
Perhaps the most common statute that exists to protect employees who have been retaliated against is a federal statute known as the False Claims Act. The anti-retaliation provision of this statute serves to provide compensation or even reinstatement to an employee that has suffered some sort of adverse employment action by their employer, such as a wrongful termination. There are additional federal anti-retaliation statutes, including the Dodd-Frank Act, the Sarbanes-Oxley Act, the Consumer Product Safety Improvement Act, the Consumer Financial Protection Act, and the Whistleblower Protection Act.
To bring a claim of retaliatory discharge under the federal False Claims Act, a discharged employee must show three things. First, the terminated employee needs to show that he or she was engaged in “protected activity” at the time of the discharge or negative decision. Second, the employee must show that the employer knew that the employee was engaged in protected activity. Third, the employee must show that the defendant employee was discharged from employment or otherwise discriminated against as a result of engaging in the protected activity.
Under the first element—showing that the employee was engaged in protected activity—there are two types of activity that could trigger False Claims Act protections. The most traditional type of activity is when an employee takes acts that are done “in furtherance of a [False Claims Act]” claim. Such activity could include investigating a variety of legal violations that the employer engaged in. This often occurs when the employee is seeking to pursue a whistleblower action.
In addition, and more recently based on statutory amendments, an aggrieved employee engages in protected activity if he or she undertakes “efforts to stop 1 or more violations of the [False Claims Act].” Such activities to stop violations could include, but are not limited to, reporting suspected employer misconduct to internal supervisors or to an internal compliance department. This internal reporting is protected even if such steps are not taken in furtherance of a potential or actual qui tam or whistleblower action.
Turning to the second element, an employee must also show that the employer was aware that the employee was engaged in protected conduct. This means, in other words, that the employer must have had notice that the employee was taking some action that could form the basis of a whistleblower claim. For example, this could be established by showing that the employee was investigating his or her employer’s illegal conduct, the employee was reporting or complaining about illegal activities, or the employee was taking some other action to stop or impede the illegal conduct.
Under the third point, the employee must prove that the employer took adverse action, such as terminating the employee’s employment or demoting the employee. As part of this element under the anti-retaliatory provisions of the False Claims Act, the employee must establish “causation,” which is showing that this adverse action occurred because of the employee’s protected activity. Under the Whistleblower Protection Act, however, the employee need only satisfy a lesser standard of causation, where the employee must only show that the protected activity was a contributing factor to the adverse action.
Causation can be proven by either direct or circumstantial evidence. Oftentimes an employee does not have direct proof of discrimination such as clear, incriminating statements made by the employer. When that’s the case, the employee can still seek to prove discrimination by pointing to circumstantial evidence. This evidence can include the closeness of time, also called the temporal proximity, between the employee’s protected conduct and the adverse action.
Individuals who have been terminated for engaging in protected activity under the False Claims Act or the Whistleblower Protection Act should explore their legal rights by consulting with an experienced Virginia whistleblower attorney. For more information about a potential whistleblower retaliation claim, please contact experienced whistleblower attorney Robert E. Byrne, Jr. at firstname.lastname@example.org or at (434) 817-3100.