Individuals, often called “whistleblowers,” who come forward with claims of fraud and associated crimes can face significant backlash and retaliation, especially if the claims are against their employer. There are a number of laws in place to protect these whistleblowers against retaliation (as well as consequences for employers or organizations who do not comply). It is important that all parties involved understand these laws and consequences.
A whistleblower is a term used to describe a person who chooses to report occurrences of fraud and associated crimes. Anyone with information of fraud or associated crimes occurring in the healthcare industry can be a whistleblower. In many cases, whistleblowers are employees or former employees of the organization in which the fraud or associated crime allegedly occurred. Whistleblowers sometimes work for a competitor.
After claims of fraud are brought, retaliation can occur, and it can take many forms. Essentially, retaliation is any adverse action stemming from the filing of the claim. Retaliation may involve:
● Being fired or dismissed from a position
● Unfavorable changes to shift scheduling or job assignments
● Verbal abuse
● Sudden allegations of poor work performance without reasoning
● Pay cuts
Generally, a whistleblower has two years to file a lawsuit if they suspect retaliation has occurred.
There are a number of state and federal laws designed to protect whistleblowers. These include:
Section 1102.5 of the California Labor Code is one of the more prominent laws protecting California whistleblowers against retaliation. It prohibits retaliation against employees who have reported violations of federal, state and/or local laws that they have reason to believe are true. Under this law, whistleblowers are protected from retaliation for reporting claims to:
● Federal, state and/or local governments
● Someone with professional authority over the employee
● Another employee in the position to investigate, discover, or correct the matter
● Any public body conducting an investigation, hearing, or inquiry
This law also states that employers may not adopt or enforce any organizational rules preventing or discouraging employees from reporting wrongdoing.
Section 1102.6 of the California Labor Code states that employees must first provide evidence that retaliation of the claim was a factor in the employer’s adverse action. Once that evidence has been established, the employer must then provide evidence that the same action would have occurred for legitimate, independent reasons, regardless of the claim.
The case of Lawson v. PPG Architectural Finishes clarified confusion on how courts should determine the burden of proof in whistleblower retaliation cases. After Section 1102.6 of the California Labor Code was enacted in 2003, some California courts continued to rely on the McDonnell Douglas burden-shifting framework to analyze retaliation claims.
Like Section 1102.6 of the California Labor Code, the McDonnell Douglas test requires the employee to provide prima facie evidence of retaliation, and the employer must then provide a legitimate reason for the adverse action in question. Unlike Section 1102.6, the McDonnell Douglas framework then requires the burden to once again be placed upon the employee to provide evidence that reason was a pretext for retaliation.
In Lawson v. PPG Architectural Finishes, the Supreme Court ruled that whistleblowers do not need to satisfy the McDonnell Douglas framework and that courts should strictly follow Section 1102.6 of the California Labor Code, easing the burden of proof for whistleblowers.
The Whistleblower Protection Act provides protection to whistleblowers on a federal level, protecting them in making claims of activity that violate “law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety.”
If a whistleblower is successful in a retaliation lawsuit against an employer, the employer can face a number of consequences, including:
● Reinstatement of the employee if he or she was dismissed
● Reimbursement of wages and benefits
● Attorney and court fees
● Reimbursement for pain and suffering
If you are involved in a qui tam lawsuit or a case involving alleged retaliation against a whistleblower, it is in your best interest to contact an experienced attorney familiar with these types of cases. Fenton Law Group has over 30 years of experience navigating healthcare claims in Los Angeles and surrounding communities. Contact us online or call us today at (310) 444-5244 to discuss your case.