Posts Tagged ‘retaliation’

Whistleblowing Without the False Claims Act: The Case of the Ebola Whistleblower

Ebola-Virus-Pictures-4Many of our clients who come forward to file a case under the False Claims Act are motivated by a common desire: to right a wrong. While some people think of corporate fraud as a victimless crime, whistleblowers know it is not. They realize that every business decision impacts a human life – that behind every decision to use a lower-cost, substandard component to build a grenade is a soldier whose life is going to depend on the grenade exploding when needed, that behind every misbranded medication is a child whose life may be forever altered by unknown side-effects, that behind every false promise of higher education is a student crippled by debt.

While the False Claims Act can be used to expose and correct certain wrongs, not all “wrongs” necessarily results in the submission of false claims.  Some wrongs, however, are still so egregious that a whistleblower is willing to come forward and expose the issues in the name of public safety and justice.

Such is the case of Brianna Aguirre, a nurse at Texas Presbyterian Hospital in Dallas, Texas, where Ebola victim Thomas Eric Duncan was treated and where two other nurses have since contracted Ebola after treating Duncan. Last week, Aguirre came forward to expose what she says are substandard protocols to prevent the transmission of Ebola by hospital and CDC employees. Among other issues, Aguirre says that the hospital failed to dispose of the massive medical waste caused by treating an Ebola patient, and CDC officials were in isolation areas with no covering garbs so germs were potentially transmitted to “clean” areas on their clothes or shoes.

After nurses Nina Pham and Amber Vinson contracted Ebola, Aguirre was upset to hear that the nurses were being blamed by the media. The nurses did what they were told, Aguirre has publicly stated, but the hospital and CDC failed them.

It remains to be seen why there were so many errors or oversights, which resulted in Pham and Vinson contracting Ebola. Was it simply a result of a lack of preparation and planning, or was there a cost-benefit analysis conducted at some level, which deemed it too expensive to have all of the necessary protocols in place to prevent disease transmission?

Whatever the cause, Aguirre clearly felt that the only way to right this wrong – to stop the blame being placed on the nurses and expose the internal flaws which led to their illnesses – was to publicly blow the whistle and call for changes. Yet, it still remains to be seen whether she will be lauded as a hero for breaking the silence in hopes of getting a better system in place, or whether she will face retaliation for speaking out of turn at the hospital’s and CDC’s expense.

There are some state-level whistleblower laws that may protect someone like Aguirre from retaliation, but they are not nearly as strong as the protections associated with the False Claims Act. In Texas, for example, the Texas Whistleblower Act (Tex. Code 554.001) protects only public employees who report certain violations by a governmental agency or another public employee to the appropriate law enforcement authority. There are additional protections for very specific situations such as registered nurses reporting incidence of poor nursing to the State Board of Nurse Examiners or physicians reporting the misconduct of another physician to the State Board of Medical Examiners. But, by and large, Texas whistleblowers may not be protected if they are retaliated against for their efforts.

Some states, like Florida, have more comprehensive whistleblower laws (Fla. Stat. § 112.3187) that protect private citizens in addition to public employees. However, Florida whistleblowers must meet several exacting requirements prior to claiming protection under the law, including providing written notice to the employer about the fraudulent activity, and giving the employer the opportunity to correct the wrong.  Each state is different and requires a careful analysis of the law to determine if a whistleblower has any protection under state laws.

Whistleblowers come from all different backgrounds, with different experiences, which lead to their desire to right wrongs. Many times, the fraud involves false claims made to the Government so a law firm specializing in the False Claims Act can help a whistleblower file a qui tam case to expose the fraud. Other times, whistleblowers must seek alternative ways to blow the whistle. These people deserve as much praise and protection as is afforded to False Claims Act whistleblowers for attempting to make the world a safer place.

To contact James Hoyer about a suspected False Claims Act violation, or if you are being retaliated against as a whistleblower, please contact us here or call us toll-free at 1-800-651-2502.

 

Employment Cases and False Claims Act Cases: What Happens When They Overlap?

Qui tam attorneys are often approached by potential whistleblowers who have already contacted an employment attorney after being terminated or harassed on the job as a result of blowing the whistle on suspected fraud.  Sometimes the whistleblower has already filed an employment case, and other times he or she is planning to file the employment case at the same times as a False Claims Act (“FCA”) case.  Although every case is unique and must be carefully evaluated by experienced qui tam counsel, there are several potential complications that should be considered when filing parallel cases.

The most significant concern is whether the employment case will jeopardize the FCA’s statutory seal, which requires that the FCA case be filed confidentially and not disclosed to the public or to the defendant company during the initial investigation.  Employment cases often move much more rapidly than FCA cases, so there is a strong possibility that the defendant company may take the employee’s deposition in the employment case while the FCA case is still sealed.  When this situation is unavoidable, there are certain strategies to protect the employee in the deposition, such as claiming a privilege to avoid answering inappropriate questions and then explaining the basis for the privilege in a sealed or ex parte communication to the employment judge.

However, that strategy is far from fool-proof, and risks still exist.

An on-going case in California highlights the potential hazards of parallel cases, though the issue arose in a slightly unique context.  A former employee named Kelly Nelson filed a wrongful termination case against a company called Millennium Laboratories, in which one of Nelson’s colleagues named Ryan Uehling was a witness.  As it turned out, Millennium believed that Uehling had filed an FCA case against the company so, Uehling claims, it sought to use Nelson’s case as an avenue to take an aggressive deposition of Uehling to find out more about the potential FCA case.[1]

Uehling was subjected to a two-day deposition that produced a transcript totaling more than 400 pages.  Notably, Millennium sent its qui tam defense counsel to take the deposition rather than the employment attorney who had been working Nelson’s case.  Millennium’s counsel asked probing questions clearly designed to elicit information about a potential FCA case, such as “Are you familiar with something called the False Claims Act?” and “Do you know what the anti-kickback statute prohibits?”  When Uehling refused to answer certain questions based on an unspecified “statutory privilege,” Millennium asked the court to force him to respond to more than 60 of the questions.  A magistrate judge ordered Uehling to respond, and threatened sanctions for non-compliance, without revieing any sealed documents which might have explained the basis for Uehling’s position.

Uehling’s attorneys have asked the district court judge to reconsider the magistrate’s decision based on several significant errors that they believe the magistrate made.  Not the least among those concerns is the magistrate’s confused holding that sealing the deposition transcript from the public would somehow preserve the goals of the False Claims Act’s seal requirement.

The magistrate’s ruling is a prime example of a court failing to understand the sanctity of the seal in a FCA case and therefore jeopardizing a relator’s confidentiality obligations.  Regardless of how the case is ultimately resolved, the decision is a critical warning of the potential dangers of a FCA relator being deposed in an employment suit while his or her case is under seal.  Although cases like Uehling’s (where he was merely a non-party witness in an unrelated case) may be difficult to avoid, relators should recognize this case as a cautionary tale of why it is important to avoid initiating parallel employment and FCA cases when possible.

This is not to say that relators should simply accept negative employment actions as a result of engaging in protected conduct.  As we have discussed on this blog before, the FCA includes an anti-retaliation provision which protects individuals who bring FCA cases.  The so-called “Section H” claim incorporates the anti-retaliation claim into the FCA case so that both will proceed together and there is no risk of exposure.

If you are a potential relator who is considering bringing an employment case in addition to a FCA case, or if you have already filed an employment case and are now considering a FCA case also, please contact James Hoyer for an evaluation of your claims.  Click here for more information about our firm and to submit your information electronically, or you can contact us by phone at 800-651-2502.

Written by Jillian Estes


[1] James Hoyer has no knowledge of whether Uehling has actually filed a False Claims Act case against Millennium and, if such a case does exist, the allegations or claims contained therein.

 

Filing a False Claims Act Complaint: Does Motivation Matter?

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Al Scudieri – James Hoyer Chief Investigator

For the past 35 years, I have been working with False Claims Act whistleblowers (also known as “relators”) first as an FBI agent and later as the Chief Investigator for the James Hoyer law firm.  I have found that relators can be just about anyone:  doctors, public servants, mechanics, accountants, investigators, members of the military, clerical personnel, CEOs, reporters, nurses, engineers – in short, anyone who has knowledge that the government is being cheated.

When complainants contact me, they often ask the same questions, one of which is: “Will my motivation matter to the government?”  Here are a few insights I have shared in response:

Why are you coming forward?

Generally speaking, relators are responding to one or more of four essential motivations: profit, moral outrage, self-protection, and revenge.  Although some motivations may be regarded as more palatable than others, if the relator’s facts and proof are solid, then the motivation for coming forward is often of little consequence to the government.  Nevertheless, when relators are deciding if they should file a False Claims Act (“FCA”) complaint, it is of value for them to come to terms with their motives.

Profit

Since successful relators stand to receive a reward of anywhere between 15% and 30% of government FCA recoveries, there is an assumption most relators are “in it for the money.”  Empirical research has shown this is not necessarily true. [1]   In fact, this research indicates although profit can be a significant motivating factor, the majority of successful FCA relators are principally motivated by a sense of moral outrage.

Moral outrage

Many relators possess a heightened sense of integrity and are truly disturbed by their discovery of unethical behavior.  They come forward with no other motivation than that of concerned taxpayers.  I find that relators in the health-care arena are generally more concerned with the impact of fraudulent behavior on patient safety than any potential monetary reward.  Relators in the defense arena who detect fraud are often more concerned with the safety of our armed forces and the fraud’s impact on national security than they are with getting rich.

Self-protection    

Occasionally, relators are willing to give the benefit of the doubt to the perpetrators of fraud and choose to assume the improper conduct they discovered may be inadvertent.  They believe corrective action will certainly be taken based upon complaints filed through proper internal channels.  Before contacting me, many relators have pursued this course of action – often to no avail.  To their surprise and disappointment, management may even have retaliated against them for merely raising legitimate concerns.

In other cases, employees are worried that sometime in the future, a finger may be pointed at them as being responsible for the improper conduct.  They feel it would be better to go on record with a preemptive complaint setting the record straight than to one day receive a knock on the door from investigators accusing them of wrongdoing.

Revenge 

In some cases, relators come to our law firm after already having lost their jobs when they raised concerns about improper conduct.  These individuals quite rightly resent that they and their families are being punished for having done the right thing.

I have also seen a number of cases wherein business owners contracting with government agencies want to report wrongdoing by competitors who gained an unfair advantage by engaging in fraud.  These relators are not only morally outraged, but also resent the negative impact of this conduct on their businesses.

Conclusion

No prospective relator should ever feel their motivation is insufficiently worthy to justify the filing of an FCA complaint.  However, such concerns should be discussed with the relator’s counsel during the initial consultation period.  The simple fact is, we are all motivated by something – and the government (which plays a major role in the success or failure of any FCA case) is well-aware of that fact.  During the initial meeting with the relator, government attorneys will almost always explore the issue of motivation as it helps place the relator’s complaint in the proper context.  Since the filing of an FCA complaint can be the beginning of a lengthy partnership between the government and the relator, it is incumbent upon relators to reach an honest determination as to their motivation and be prepared to share that information with their attorneys and the government.

If you believe you have information regarding fraud against the government and are considering bringing a False Claims Act case, please contact James Hoyer for an evaluation of your claims.  Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.

Written by Al Scudieri


[1] Kesselhim, “Whistle-Blowers’ Experiences in Fraud Litigation Against Pharmaceutical Companies 362:19 NeJM 1832-34, 2010.

 

Can an Employer Retaliate Against an Employee for Bringing a False Claims Act Case?

Whistleblowers who come forward with information about fraud against the government are some of the nation’s most courageous and noble citizens.  These employees should be honored and coveted by employers for helping companies maintain levels of integrity and professional responsibility.  However, the reality is that not all companies respond well to reports of fraud, let alone the actual filing of a qui tam suit.  In those cases, whistleblowers may face harassment, demotions, or even termination.

Because of the very realistic concerns about workplace consequences, one of the most common questions we receive from potential whistleblowers is:

What will happen to me if I become a whistleblower?

Retaliation in the workplace is a nearly universal concern for whistleblowers.  Prior to 1986, that fear was well-founded because there were no real protections in the False Claims Act (“FCA”) to prevent whistleblowers from being harassed, demoted or terminated.  To encourage whistleblowers to come forward without fear of retribution, Congress included an anti-retaliation provision in the modern version of the FCA.  That part of the law is officially known as 31 U.S.C. § 3730(h), but it is often referred to simply as “Section H.”

Section H is designed to discourage employers from taking negative employment actions, and to make an employee “whole” again if the employer does engage in such conduct.  The law provides several remedies for an aggrieved employee: twice the amount of owed backpay plus interest, compensation for special damages, and attorney’s fees and costs related to the Section H claim.  Perhaps most importantly, an employee must be reinstated to his or her position of employment, with the same seniority status as he or she would have had if not for the negative action.

To obtain these Section H benefit, the whistleblower must show two things:

(1) that the employee engaged in protected conduct; and
(2) that the employee was discriminated against because of the protected conduct.

U.S. ex rel.  Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C.Cir.1998).

“Protected conduct” is a legal term that means that the employee engages in an act in furtherance of efforts to stop a violation of the FCA.  While that can mean actually filing a qui tam case, it can also mean simply investigating and reporting suspicions of fraud.  Hutchins v. Wilentz, et al., 253 F.3d 176, 187-88 (3d Cir. 2001).  It is important to note that an employee may have a Section H claim even without ever filing an FCA case.  Id. at 188.  Courts around the country have taken different approaches to what constitutes “protected conduct” and the analysis will always be fact-specific, so it is very important that an employee concerned about potential retribution consult with an attorney to discuss their case.

To show that the discrimination was “because of” the protected conduct, an employee must show that (1) his employer knew he was engaged in protected conduct, and (2) the retaliation was motivated – at least in part – by the employee’s protected conduct.  This part of the law exists to ensure that Section H isn’t abused by aggrieved employees who are terminated for unrelated reasons and then attempt to “cry fraud” after the fact.  Neal v. Honeywell Inc., 33 F.3d 860, 863 (7th Cir.1994).

Documenting the Process

Because the Section H elements are so fact-driven and unique to each case, the most important thing a whistleblower can do is to take meticulous notes to document the process.  For example, a whistleblower may want to document:

  • To whom did I report my concerns of fraud, and what were their reactions?
  • What other individuals, especially superiors, are aware of my investigation and concerns?
  • Has anyone expressed concerns to me about my activities or reports?
  • Have there been any unfounded complaints about my work product or performance?
  • Have I recently had a job review that did not reflect accurately reflect my performance?
  • Have I been taken off projects, excluded from meetings, excluded from emails, not been permitted to review internal documents, etc.?

All of this information will be critical in proving the elements of a Section H claim.  An employer can defend against an allegation by showing that it had no knowledge of the employee’s conduct or that the negative employment action was not related to the protected activity at all.  Careful notes, including dates and times, will aid in identifying how an employee was treated differently after the employer became aware of the protected activity.  This can rebut the employer’s contentions and give an employee the right to recovery under Section H.

Weathering the Storm

It is important to recognize that a Section H claim is not preemptive, meaning it cannot prevent employers from taking negative action against a whistleblower.  Rather, Section H is a responsive remedy that kicks in after the relator has experienced negative consequences, and provides relief only once the relator has prevailed in proving the elements of the Section H claim.  The unfortunate reality is that an employee must be prepared to weather the storm for the duration of the case, but can find some comfort in knowing that there is a remedy in place to protect his or her interests in the end.

If you believe you have information regarding fraud against the government and are considering bringing a False Claims Act case, please contact James Hoyer for an evaluation of your claims.  Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.

Written by Jillian Estes

 

Federal Contractor and Subcontractor Employees Now Protected from Retaliation

As of July 1, 2013, a new series of protections came into effect to protect federal contractor or subcontractor employees from being retaliated against for blowing the whistle on fraud, waste or abuse.  In the past, a loophole existed in the retaliation protections such that a contractor or subcontractor employee could blow the whistle on fraud, waste or abuse and could simply be fired for their reporting without any avenues for relief.  The employee was only protected if he or she actually went to a government office with a complaint, which may have meant circumventing the employee’s chain of command.

As part of the National Defense Authorization Act for Fiscal Year 2013, laws are now in place that protect federal contractor or subcontractor employees from termination or harassment after reporting fraud, waste or abuse within his or her company.

With approximately $1.9 trillion tied up in government contracts, grants and reimbursements annually, the importance of providing a safe avenue of reporting for contractor employees cannot be underestimated.   The purpose behind this new protection is to encourage more of the 12 million federal contractor employees to come forward with their concerns without a fear of retribution.  In 2011 Senate hearings, Maggie Garrison, Dept. of Defense’s deputy inspector general for administrative investigations, acknowledged that the number of complaints is small, but was already beginning to rise, noting “[W]e had about 16 in 2006 and by last year we had 65.”  The number is expected to significantly increase with these new protections in place.

If the Office of Inspector General or an appropriate court finds that a whistleblower faced retaliation and is entitled to relief, the employee is entitled to be made whole – meaning to receive he or she could receive uncapped compensatory damages.

It is very important for potential whistleblowers to recognize that the NDAA 2013 protections are not absolutes.  For examples, tf a person makes complaints are determined to be unfounded, the person may not be considered a whistleblower and therefore would not be protected from negative employment actions.  This is intended to encourage individuals to come forward with actual evidence of fraud, rather than merely using this as a shield in simple employment disputes.  Additionally, there are exclusions in the law for the intelligence community that may be complicated and should be discussed with legal counsel for a complete assessment.

It is also important for whistleblowers to remember that the protections are in effect for contracts or task orders that are signed after July 1, 2013 – not for whistleblowing on existing contracts after the effective date.  Thus, if a contractor or subcontractor employee makes a report regarding a contract existing prior to July 1, 2013 (and that was not modified to include this new clause), the new protections will not be in effect.

If you are an employee of a federal contractor or subcontractor who has made a report of fraud, waste or abuse to your superiors, or if you are considering making such a report and would like to discuss the protections available to you, please contact the James Hoyer law firm for an evaluation of your case.  Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.

Written by Jillian Estes