The number of retaliation and whistleblower claims in the US continue to rise. According to data released by the Equal Employment Opportunity Commission (EEOC), retaliation claims made up 44.5 percent of all charges filed in 2015. Also, the Occupational Safety and Health Administration (OSHA) reported a 6 percent increase in the number of whistleblower cases filed in FY 2015. The increase in retaliation and whistleblowing claims is especially felt in the healthcare industry where whistleblowers collected a little over $330 million in rewards from False Claims Act (FCA) cases. Under the FCA, individuals who report fraud and false claims against the government are entitled to a share of the government’s recovery. Given the expansion of whistleblower protections and rights, and the government’s increased focus on fraud, employees are continually encouraged to report any perceived fraud or abuse. Thus, employers must be prepared for the likely inevitability of retaliation or whistleblower claims when disciplining, discharging, or dealing with employees regarding any material personnel decisions.
Retaliation lawsuits are not uncommon under employment law statutes. However, there are also an increasing amount of statutes at both the federal and state level that include non-retaliation provisions for individuals and employees that report, or blow the whistle on, perceived misconduct, fraud or abuse. In addition to Title VII of the Civil Rights Act of 1964, anti-retaliation provisions can be found in the Fair Labor Standards Act, the Occupational Safety and Health Act, the Affordable Care Act, and the False Claims Act (FCA), to name a few. Generally, the three basic elements of a retaliation lawsuit are: (1) the employee engages in protected activity; (2) the employee suffers an adverse employment action; and (3) there is a causal connection between the employee’s protected activity and the adverse employment action. The employee must show that but for his protected activity the employer would not have taken the adverse employment action. Protected activity may include participating in investigative actions, reporting actual or perceived violations of law, or opposing activity that may violate a law, rule or regulation. In the healthcare context, this may include an employee’s objections to a certain course of patient care or business practice related to patient billing, among other things. Adverse employment actions include such things as termination, suspension, demotion or transfer.
In September of 2015, the Department of Justice issued a memorandum expressing its increased focus on individual accountability for corporate wrongdoing and its commitment to utilize the FCA to redress fraud by individuals as well as corporations. The memorandum, which has become known as the “Yates Memo” (so named after its author Deputy Attorney General Sally Quillian Yates) will likely have the effect of further increasing whistleblower, or qui tam, lawsuits under the FCA, wherein the whistleblower is entitled to a share of the government’s recovery for his part in helping to expose fraud and recover government funds. Importantly, if the whistleblower also files a retaliation claim, he may recover damages up to two times the amount of back pay to which he is entitled, as well as special damages, including attorneys’ fees and costs, in addition to a share of the government’s recovery.
Of the $3.5 billion obtained by the Department of Justice in settlements and judgments from FCA cases in fiscal year 2015, $1.9 billion came from cases against companies and individuals in the healthcare industry. Given the ever increasing rate of retaliation and whistleblower cases, the Department of Justice’s renewed focus and commitment to individual accountability under the FCA will undoubtedly have a large impact on healthcare professionals and employers. In order to be prepared should such a claim arise, healthcare employers should familiarize themselves with and ensure they understand the laws, rules and regulations that govern the business of healthcare. There are myriad state and federal laws and rules governing the healthcare industry with which companies and individuals must ensure they are compliant. Designating a compliance officer to monitor and ensure compliance with all applicable laws, rules and regulations is recommended. Employers should also develop and implement a code of conduct or ethics which instructs employees on how they are expected to behave and perform, and provide an internal reporting structure for employees to report any violations of the code or industry laws, rules and regulations. A policy prohibiting retaliation against employees who report issues should also be adopted.