“Whistle blowing” is revealing wrongdoing to the public or to someone in a position of authority. There are several reasons why the decision of an employee to inform on illegal or unethical practices – to blow the whistle – should be carefully considered before taking action:
- If the wrongdoing involves a future planned action, is it certain to happen and what would be the extent of the harm?
- If the wrongdoing already occurred is there absolute certainty that illegal or unethical practices took place?
- Is it in the public’s best interest to reveal the wrongdoing?
- Have you allowed the company executives in the chain of command the opportunity to correct the wrongdoing?
- Under what conditions is whistle blowing the right thing to do and when is another course of action more constructive?
What is Qui Tam?
Qui tam is a legal principle found in the Federal False Claims Act that allows any person, including corporations, known as whistleblowers, to bring a lawsuit on behalf of the government against anyone who uses government funds in a fraudulent way. Qui tam also allows the whistleblower who filed the suit to receive a portion of any funds that are recovered by the qui tam lawsuit.
Most anyone can file a qui tam lawsuit, including employees of the company or agency that is defrauding the government, former employees of the company or agency, competitors or subcontractors, state and local governments, federal employees, public interest groups, corporations, and private citizens.
Federal False Claims Act
The Federal False Claims Act was originally enacted (in 1863) to fight defense contractor fraud, but it was also applicable to all federal programs and federal contractors. Unfortunately, it was very difficult for a private citizen to bring suit because they had to bear the cost of the suit themselves. In addition, several judicial rulings had made it hard to enforce the law.
In 1943, Congress amended the law so that the reward to the whistleblower who brought the suit was reduced. In addition, the amendments provided that a person could not file a qui tam lawsuit if the government had prior knowledge of the charges.
Finally, in 1986, Congress once again amended the False Claims Act to raise the amount rewarded, to raise the amount of damages that could be imposed on the defendants, to allow the qui tam case to be filed even if the government already knew about the charges, and to protect the whistleblower. After these amendments passed, qui tam cases began to be filed in increasing numbers.
Qui Tam Cases
There are several types of qui tam cases that can be filed. These include mischarging, product and service substitution, false negotiation or defective pricing, and false certification of entitlement for benefits.
Qui tam cases have been successfully brought against defense contractors and on behalf of other agencies, including Health and Human Services (HHS) and NASA.
The whistleblower protection clause in the 1986 amendment to the False Claims Act protects the whistleblower from harassment, demotion, and wrongful termination. In addition, the whistleblower protection extends to anyone who investigates, testifies, initiates, or assists in a qui tam lawsuit.
If you believe you may have a qui tam case, contact a qui tam attorney to discuss the specifics of your lawsuit.
Conflicting personal, organizational and civic loyalties can make deciding whether or not to blow the whistle an agonizing endeavor. Consulting the legal advice and expertise of an attorney experienced in employment and other related law areas can assist you in judging whether legal action is warranted. At Johnson & Monteleone, LLP we offer a free consultation to assist you. Call (208) 331-2100 to arrange an appointment with one of our attorneys.