RJ - Health Care Compliance Association

October 20024By Frank SheederEditor’s note: Frank Sheeder is the principaland founder of The Sheeder Firm, a employer because of lawful acts done byconditions of employment by his or herDallas-based law firm that focuses on the employee on behalf of the employeehealth care compliance and complex litigationmatters. He may be reached at under this section [e.g., a whistlebloweror others in furtherance of an action214/747-9900 or at frank@sheederfirm.coessaryto make the employee whole.action] shall be entitled to all relief nec-Despite the significant attentionand resources that employees under this language when theCourts generally grant protection tohealth care providers are following three elements are present:devoting to compliance, they are being ■ Protected activity–The present orchallenged by an increasing number of former employee engaged in “protectedactivity.” Such activity canqui tam, or whistleblower, lawsuits. Therelators in those cases are most often include the employee’s investigationthe provider’s present or formerof a matter that is a possible Falseemployees. This article describes the Claims Act violation. It can also consistof confronting an employerlegal protections generally afforded towhistleblowers, profiles the “common” about suspected fraudulent activity.whistleblower (although they come in The activity must be coupled with amany varieties), and offers some guidanceon the steps that providers can blower action. Allegations of fraud orreasonable possibility of a whistle-take to avoid having otherwise dedicatedemployees become zealous adver-fraud against the federal governmentmisconduct, without some link tosaries.and a contemplated or pending FalseClaims Act case, may not be protectedactivity.Legal protections for whistleblowersThe laws protecting whistleblowers are ■ Notice–The employer knew of thestrong at the federal level and in many employee’s protected activity. Thisstates. The federal False Claims Act, 31 element is necessary to show theU.S.C. ß3730(h), offers the following employer’s retaliatory intent. Noticesafeguards:to the employer can be implicit orAny employee who is discharged,explicit, and the level of employerdemoted, suspended, threatened,knowledge that the courts requireharassed, or in any other manner discriminatedagainst in the terms andvaries significantly among jurisdictions.FRANK SHEEDER■ Causation–The employee was terminatedor discriminated againstbecause of the employee’s protectedactivity. This element establishes thecausal link between the employee’sprotected activity and the employer’smistreatment of the employee. Anemployer’s legitimate, non-pretextualreasons for taking action against anemployee may prevent the employeefrom sustaining a retaliation claim.An aggrieved employee who establishesa retaliation claim is entitled to a widerange of relief. A non-exhaustive list ofthe remedies that an aggrieved employee“shall” receive includes:■ Reinstatement with the same senioritythe employee would have enjoyedbut for the adverse action againsthim or her■ Two times back pay■ Interest on the back pay■ Special damages, which can includecompensation for emotional distress,recovery of litigation costs, and reasonableattorneys’ fees■ All relief necessary to make theemployee wholeThe relief to which the aggrievedemployee is entitled is in addition tothe relator’s share of any recovery by