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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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2015 To Be Strongest for Retaliation and Whistleblower Claims

If 2014 is any indication, 2015 will be the strongest year yet for Whistleblower claims and retaliation protection. ┬áRecent years showed an increase in government enforcement along with emergence of whistleblower and retaliation claims. With strengthened statutes and favorable case law, the landscape is ripe for increased awards. In fiscal year 2014, the Department of Justice brought over 700 whistleblower lawsuits and recovered almost $3 billion dollars from false claims act (“FCA”) cases. Accordingly, the government paid $435 million to individuals who exposed fraud and false claims. Additionally, California’s Department of Industrial Relations has a robust specialized Retaliation Complaint Unit that investigates complaints alleging discriminatory retaliation in the workplace on the basis of various Labor Code sections.

The Patient Protection and Affordable Care Act (“PPACA”) provides additional protection for whistleblowers and bolsters the federal Anti-Kickback Statute (“AKS”) PPACA requires California health care entities that received an overpayment to return the overpayment to the government and notify the government agency to which overpayment was returned of the reason for the overpayment. Return of overpayment must be made within 60 days of the entity’s identification of the overpayment or the date its periodic cost report is due. If the entity retains the overpayment after the deadline, it may be liable under the FCA. Further, PPACA amended the FCA where a violation of AKS now may also violate FCA. Importantly, PPACA added whistleblower protections where adverse action is prohibited against employees who (1) receive a premium tax credit or subsidy for a health plan, (2) provide information to the employer or the government regarding a violation, act, or omission that the employee reasonably believes to be a violation relating to Title I of PPACA, (3) testifies in a proceeding concerning such violation, (4) assists or participates in such a proceeding, or (5) objects to, or refuses to perform, any activity or assigned task the employee reasonably believes to be such a violation.

California also has several key laws that protect whistleblowers. In general, Labor Code Section 1102.5 prohibits retaliation against whistleblowers that notify the government or refuse to participate in activity that would violate any laws or regulations in the workplace. Labor Code Section 98.6 prohibits retaliation against employees who file a complaint for labor code violations with the Labor Commissioner or the Department of Fair Employment and Housing, and Labor Code 6399.7 prohibits retaliation against employees for filing a complaint or testifying on occupational safety and health issues.

If you believe that you have a protected whistleblower claim or experienced retaliation for a protected activity, contact the experienced employment law attorneys at Stephen Danz & Associates to discuss your legal options. See these blogs for additional forms of discrimination.