I love the smell of Sour Patch Kids and the False Claims Act


You know, I don’t think we’ve ever discussed the False Claims Act here at The Employer Handbook.

I don’t think we’ve discussed crowded clown cars either. And, while clowns may pique more interest, alas, this is an employment-law blog. So, I suppose we’ll enjoy our first taste of FCA together.

Kinda tastes like Sour Patch Kids.

Anyway, where was I? Right, the False Claims Act.

What is the False Claims Act?

In a nutshell, under the False Claims Act, folks who knowingly submit a false claim to the government that causes the government to lose money may find themselves in a lot of trouble.

For purposes of today’s discussion, what you need to know is that the FCA also contains an anti-retaliation provision. That anti-retaliation provision protects employee whistleblowers who engage in activity protected by the FCA (e.g., blowing the whistle to the government) from, you guessed it, retaliation.

There’s a but…for.

In DiFiore v. CSL Behring (opinion here), Ms. DiFiore asserted an FCA retaliation claim against her former employer, CSL Behring. This claim went all the way to trial, at which a jury found in favor of the employer.

What stuck in the plaintiff’s craw; however, was an instruction that the judge gave to the jury; namely, that the FCA retaliation provision required that protected activity be the “but-for” cause of adverse actions against the plaintiff. In other words, to find in favor of the plaintiff, the jury would have to conclude that “because of” the plaintiff’s whistleblowing, the employer took action against her.

So, the plaintiff appealed.

And, unfortunately for her, she struck out again. Here’s why…

Under the FCA’s anti-retaliation provision, an employee is entitled to relief if she was “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts” conducted in furtherance of an FCA action. (my emphasis). The Third Circuit Court of Appeals reasoned that the language of the FCA anti-retaliation provision uses the same “because of” language that compelled the Supreme Court to require “but-for” causation in prior cases construing Title VII’s anti-retaliation provision and disparate treatment claims under the Age Discrimination in Employment Act.

Thus, the Third Circuit Court of Appeals concluded that the “but for” / “because of” standard applies to FCA retaliation claims too.

Employer takeaways.

Don’t let the relaxed tone at the start of this post fool you.

FCA claims are no joke. And claims of retaliation, FCA or otherwise, rarely sit well with a jury. That’s because just about everyone sitting in the jury box knows someone — maybe even by looking in the mirror — who has been retaliated against in some way or another. Then, add to the equation an employer with perceived deep pockets.

So, if you’re clutching your pearls hoping that a layperson jury grasps the distinction between “but for/because of” and any causation standard, clutch real hard.

While it’s nice to have decisions like these that establish a “but for” standard on certain retaliation claims, don’t expect them to significantly alter the outcome of the retaliation claim that your company may find itself defending.


Image Credit: By Evan-Amos (Own work) [CC0], via Wikimedia Commons
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