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6th Circuit: FCA Whistleblower Protections Extend to Post-Employment Retaliation

On March 31, 2021, the Sixth Circuit addressed an issue of first impression in the circuit, holding that the False Claims Act’s (“FCA”) whistleblower protection provisions protect former employees from post-employment retaliation.  United States, ex rel. Felten v. William Beaumont Hospital, No. 20-1002.

Background

Plaintiff was employed as a doctor at a Michigan hospital.  He filed a qui tam action against the hospital alleging that it was paying kickbacks to various physicians and physicians’ groups in exchange for patient referrals.  Plaintiff also claimed that the hospital terminated his employment and then maligned him in retaliation for his reports of illegal conduct, thus undermining his employment applications to numerous other institutions.

The U.S. District Court for the Eastern District of Michigan dismissed Plaintiff’s retaliation claims pertaining to conduct that occurred after his termination, holding that the FCA’s anti-retaliation protections apply only to conduct occurring during the course of employment.  Plaintiff requested that the dismissal order be amended to restore all of his claims, and the district court certified for interlocutory appeal the question of whether the FCA’s anti-retaliation provision applies to allegations of post-employment retaliation.  The Sixth Circuit granted interlocutory review.

Ruling

A split Sixth Circuit panel vacated the district court’s dismissal order, holding that the FCA’s anti-retaliation provision protects former employees from post-employment retaliation.  Following the statutory interpretation framework laid out by the Supreme Court in Robinson v. Shell Oil, 519 U.S. 337 (1997)—in which the Court held that Title VII covers former employees—the court concluded that the term “employee,” as used in the FCA, is ambiguous and could encompass both current and former employees.

Given the statute’s ambiguity, the court examined the “broader context” and “primary purpose” of the FCA’s anti-retaliation provision to determine whether it covers former employees.  Explaining that the provision is meant to encourage the reporting of fraud against the government by protecting individuals who assist in the discovery and prosecution of such fraud, the court held that former employees can invoke the statute’s protections.  The court reasoned that potential whistleblowers would be dissuaded from reporting fraud if employers had the ability to retaliate against them without repercussion as long as they terminate the employee first.  Notably, however, the court did not address whether blacklisting is a form of retaliatory conduct that is prohibited by the FCA, and it remanded the issue for the district court to decide.

Implications

This decision creates a circuit split, as the Sixth Circuit’s holding contradicts the decisions of the Tenth Circuit and numerous federal district courts which have held that former employees are not covered by the FCA’s anti-retaliation provision.

© 2022 Proskauer Rose LLP. National Law Review, Volume XI, Number 113
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About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
Pinny Goldberg Labor and Employment Lawyer Proskauer Rose Law Firm
Associate

Pinny Goldberg is an associate in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in pre-litigation negotiations. Matters he works on include discrimination and harassment, wage and hour, wrongful discharge, whistleblowing and retaliation, covenants not to compete, breaches of fiduciary duty, unjust enrichment, and tort and contract claims. 

In...

212.969.3074
Law Clerk

Julia Hollreiser is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.

Related Practices

  • Labor & Employment
  • Employment Litigation & Arbitration
212-969-3136
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