Employers within the highly regulated life sciences industry are significantly vulnerable to employee claims seeking to “blow the whistle” on allegedly unethical, criminal, and unlawful practices. Based on a recent report released in December 2018 by the Department of Justice, while $2.1 billion came directly from whistleblower actions, $2.5 billion of the $2.8 billion recovered pursuant to 31 USC § 3729 et seq. (the False Claims Act (FCA)) was recovered from the healthcare industry.
To continue this discussion, this blog post provides an overview and a review of the protections provided to whistleblowers under the False Claims Act.
Whistleblower Protections under the False Claims Act (FCA)
Usually, Medicaid and Medicare expenses are implicated when fraud incidents occur in the pharmaceutical and healthcare industries. For this reason, while the whistleblower protections provided under the statute are mirrored under many state laws, the False Claims Act (FCA) is particularly an important law in the field of life sciences. In this regard and pursuant to 31 USC § 3730(h)(1), the FCA protects all agents, contractors, and employees from retaliation in the form of harassment, threats, suspension, demotion, discharge, or any other manner of discrimination against the terms and conditions of employment should they engage in protected activity such as reporting violations.
Notably, even if the court finds the underlying conduct for which one received punishment from the employer for reporting to be lawful, the complainant or plaintiff should still go ahead and bring a whistleblower claim since it is available under the provisions of the FCA. It is crucial to note that pursuant to 31 USC § 3730(b), the individuals filing whistleblower claims under the FCA bring the action on behalf of themselves and the government of the U.S. Furthermore, the individual assumes the status of a qui tam action (a party to the action) if the government moves forward with the action and pursuant to 31 USC § 3730(c).
Accordingly, while employers found in violation of the FCA are liable for treble damages, a qui tam complainant would be entitled to a number of things. Pursuant to 31 USC § 3730(d), such a plaintiff is entitled to:
- Reasonable expenses and attorney’s fees
- If the government moves the claim forward, they may receive a bounty of 15% – 25% of the recovery.
In Part IV of this new series, we shall move the discussion forward and hammer on “New York & New Jersey Whistleblowing Laws in the Life Sciences” for an overview of the whistleblowing laws in both New York & New Jersey that are related to life sciences.
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer & Author.