If you are worried about reporting unethical or illegal behavior at the workplace, take comfort in knowing there are laws protecting whistleblowers.

Congress enacted the False Claims Act (FCA) in 1863 when there were concerns that those supplying goods to the Union Army during the Civil War were defrauding the Army. Over the years, the FCA has been amended many times, but the intent remains the same, which is to encourage employees to report fraudulent activity without the threat of retaliation.

What Actions by a Whistleblower Are Protected?

The FCA says the laws protecting whistleblowers include “lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the False Claims Act] or other efforts to stop one or more violations [of the False Claims Act].”

The reporting party’s relationship to the offending party is not as important as is the type of FCA violation the whistleblower reports.

What if My Employer Asked Me to Participate in a Fraudulent Transaction and I Refused? Am I Still Protected Under the FCA?

Yes, whistleblowers are protected by the FCA according to a case determination made in the Second Circuit. In Fabula v. American Medical Response, a whistleblower was deemed protected by the FCA when he refused to sign a fraudulent reimbursement document. The court said the act of refusing to engage in an illegal act is very similar to making an internal complaint that the act is illegal.

What Sort of Retaliation is a Whistleblower Protected from Under the FCA?

A whistleblower cannot be fired, demoted, suspended, threatened, harassed or singled out as the subject of any type of discriminatory behavior. They cannot be reprimanded, either verbally or in writing, for reporting fraudulent practices. Their employer cannot reassign them to a different set of responsibilities or demote them or file a lawsuit against them in retaliation for their whistleblowing decision.

Also, if the employer ignores the whistleblower’s allegations that fraud is being committed against the government and the whistleblower feels compelled to resign, this may constitute constructive discharge. In that case, the whistleblower may be allowed to file a lawsuit against the employer because, in reality, the resignation was not voluntary, but was a termination. According to The Balance Careers, constructive discharge includes situations forcing a whistleblower to choose resignation to avoid guilt by association.

What May I Receive as an Award for Blowing the Whistle?

The laws protecting whistleblowers usually allow the whistleblower to receive 10 to 30 percent of the sanctions collected, whether it be through a settlement or a judge or jury decision. The whistleblower may also receive financial damages for emotional distress, reputation damage or humiliation if they have suffered such injuries. Anti-retaliation laws allow the whistleblower to seek lost wages and reinstatement to their job.

What Whistleblowers Should Know About Retaliation Evidence

According to the Consumer Product Safety Commission, in order to argue that the employer has violated the law and that the employee is due compensation, the worker needs to gather evidence as soon as possible. The evidence relied upon in such a claim is important for showing the strength of the retaliation claim after the employee was involved in protected activity.

Evidence gathering types fall into different categories. Some are not only allowed in terms of the employee collecting and storing these, but could actually fall under protected activity. Certain attempts to collect evidence, however, cross the line and could expose an employee to legal or even criminal liability. This makes it important for the employee to be aware of the evidence types that might be referenced in a case.

Removal of some documents from the workplace, especially those that break confidentiality or violate federal privacy laws like HIPAA, should be discussed with a whistleblower lawyer. Taking these can be against the law.

Photos, videos, emails, company memos, and more can all serve as examples of evidence in a whistleblower retaliation claim. One of the most important things to be illustrated during the course of a retaliation claim is evidence that supports the contributing factor causation standard.

This means that the employee must show that the protected whistleblower activity played some role, even if that role is minor, in the adverse action taken against the employee. An employee does not bear the burden of disproving the employer’s alleged reasons for taking some kind of adverse action. Consulting with an attorney is recommended due to the complexities of gathering evidence.