The Federal and State Whistleblower Statutes are meant to correct fraud on the federal and state government. At the federal level, this is generally referred to as the False Claims Act.
If you are an employee who works for any public or private entity who contracts with the government and believes that the government is being cheated, you can seek to correct this and recover some portion of what the government recovers based on your “whistleblower” complaint.
In a valid whistleblower claim, the plaintiff stands in the shoes of United States Citizens and generally files the claim against the fraudulent defendant in the United States District Court anonymously.
You must be able to show:
a. financial loss to the government;
b. a violation of the securities or commodities laws;
c. harm to employees or the general public dealing with the environment, public health, and safety, consumer welfare.
Common examples of fraud or misconduct include:
- Billing the government for products or services not provided, malfunctioning, sub-standard, mislabeled, or different from the products or services for which the government contracted (think of the golden hammer).
- Failure to report government overpayment.
- Obtaining government funds through false certifications of compliance or through violations of law; this is often is reflected in Medicare fraudulent billing.
- Selling and/or marketing drugs outside of FDA approved uses.
- Accounting fraud.
- Fraud or trading manipulation in securities or commodities.
- Misconduct in sales of securities, bonds, or commodities.
Evidence in a whistleblower case.
Documents are always valuable, but you must use extreme caution in retaining government documents, which should not ordinarily be in your possession. Before retaining or keeping documents where there might be a question, you should consult a lawyer first.
You must provide the government with new information that it could not otherwise obtain. Therefore, the collected evidence cannot come from public sources, such as the Internet, TV, government records, or reports. Public information may be utilized in certain instances if you provide a unique analysis demonstrating the existence of fraud or misconduct. To make YOUR claim viable, the fraudulent act must not have previously been disclosed.
Statute of Limitations
Every lawsuit is governed by a statute of limitations, which varies depending on your whistleblower claim. For the False Claims Act, cases generally must be filed within six years of the violation. For the Dodd-Frank Act, claims commonly must be reported to the whistleblower office of the SEC (for securities violations) or the CFTC (for commodities violations) within three years of the violation. For violations of the various state FCA laws and industry-specific whistleblower laws, claims must be reported between 30 days and 6 years after the violations, depending on the particular statutes at issue. Statutes of limitations are subject to change, and you should consult with a whistleblower lawyer as soon as you realize that you may have a claim. The statute of limitations is critical and complex. It is best to consult a lawyer as soon as you suspect there may be a claim. In addition to Federal Whistleblower claims, California has its statutory scheme which mirrors (in many ways) the federal statute.
California Whistleblower Claims
In addition, the California State Legislature has adopted statutory protections for employees. Notably, California has a general whistleblower protection statute that protects employees who disclose illegal activity or refuse to participate in illegal activities. Whistleblowers are thus protected under both this statute and the common law public policy exception. Also, several other California statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, hazardous substances, occupational safety and health, and workers’ compensation. Also, California protects employees who file a complaint relating to employee rights with Labor Commissioner.
During this COVID-19 crisis, workers in essential businesses are reporting fears about whether they are safe at their workplace. The overriding concern for most workers is their chance of being exposed to the virus. Matters such as a lack of personal protective equipment (PPE), failure to implement appropriate social distancing, and lack of products to sanitize hands or workspaces are common. Some employees have protested; others have refused to report to work and refused to perform specific tasks. If you have concerns regarding your employer's protection against COVID exposure, call Andrea Cook & Associates. We can help.
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