Former Whistleblowers: Why the False Claims Act's Anti-Retaliation Provision Should Protect Former Employees

Abstract

Since the Civil War, the False Claims Act has served as a tool to combat fraud perpetrated against the government. Early fraud by government contractors during the Civil War was quaint: contractors selling the same horse twice or filling a Union Army contract for sugar with sand. Today, the government recovers billions of dollars annually through actions under the FCA. Essential to the FCA’s functioning are “relators,” private citizens who serve as whistleblowers incentivized to report fraud by receipt of a percentage of whatever amount the government recovers in damages. The government relies on relators to blow the whistle on fraud—over two-thirds of FCA recoveries since 1986 come from cases brought by relators as whistleblowers. So important are these relators that in 1986 Congress amended the FCA and included an anti-retaliation provision to provide relief for employees who experience retaliation from their employers for reporting fraud. This Note discusses a recent circuit split over whether the anti-retaliation provision of the FCA protects former employees against post-termination retaliation by their employers, arguing that the anti-retaliation provision extends to retaliation against former employees. In arguing in favor of a more inclusive definition of “employee” in the FCA’s anti-retaliation provision, this Note explores the history and purpose of the FCA, the legislative history of the FCA’s anti-retaliation provision, and the arguments for and against the inclusion of former employees under the provision’s protections. Finally, this Note calls for Supreme Court intervention or congressional action to clarify that the FCA’s anti-retaliation provision protects former employees from post-termination retaliation.