06/09/2013 // Justice News Flash: Featured Column // Kathleen Scanlan // (press release)
Headlines out of Washington may suggest that federal lawmakers are incapable of legislating in these hyper-partisan times. However, The Survey of Federal Whistleblower and Anti-Retaliation Laws released in April 2013 by the federal Congressional Research Service discusses 40 laws, from the Americans with Disabilities Act (ADA) to the Fair Labor Standards Act (FLSA) to the National Labor Relations Act (NLRA) where Congress has acted in recent years to strengthen federal whistleblower laws.
Here is a sampling of laws that were adopted or amended since 2010:
• The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) of 2010. In addition to creating the SEC’s whistleblower program, Dodd-Frank also contains several whistleblower protections for people employed in the financial services industry. Such employees are protected from discrimination if they provide information related to the violation of certain commodity futures and securities laws, for example. An individual who proves a retaliation claim is entitled to back pay with interest, compensation for special damages, and litigation costs.
• The Whistleblower Protection Act, adopted in 1989, amended in 1994 and 2012, provides protections for federal employees who provide evidence of government wrongdoing.
• The Patient Protection and Affordable Care Act (PPACA) is the comprehensive health care legislation signed by President Obama in 2010. It amended the Fair Labor Standards Act (FLSA) to provide protections for employees who uncover fraud via the delivery of health care with public monies.
• The Sarbanes-Oxley Act of 2002, amended in 2010, prohibits publicly traded companies from retaliating against whistleblowers who call attention to bank fraud, mail fraud, wire fraud, SEC violations, or fraud against shareholders. The Supreme Court has just agreed to hear a case to answer the question of whether an employee of a privately-held contractor or subcontractor of a public company is protected from retaliation under this law.
The False Claims Act, designed to recoup money bilked from the government, still stands as the gold-standard of whistleblower laws. Recent amendments there, too, show Congress’ continued commitment to strong whistleblower laws.
• The Fraud Enforcement Recovery Act (FERA) passed in 2009, made changes to insure the continued strength of the FCA as the government’s most effective fraud-fighting tool. After FERA “reverse false claims” now include instances where a defendant “knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” FERA also made clear that there is no requirement to “present” a false claim to the government, effectively overruling the Supreme Court’s opinion in Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008). Through FERA Congress also amended the definition of the word “claim” to include “money or property spent or used on the Government’s behalf or to advance a Government program or interest” and where the government provides or reimburses any portion of the requested funds
• The PPACA expanded the reach of the False Claims Act with amendments to the public disclosure bar and the definition of “original source.” It also clarified changes made in FERA, to explain that overpayments under Medicare and Medicaid must be reported and returned within 60 days of discovery, or the date a corresponding hospital report is due. The PPACA also amended the language of the Anti-Kickback Statute (AKS) to provide that claims submitted in violation of the AKS automatically constitute false claims for purposes of the FCA.
Congress’ continued efforts to bolster these laws, even amidst Washington gridlock, are a testament to the powerful role whistleblowers play in enforcing all federal laws.
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