Anti-Retaliation Under the False Claims Act
The individuals that are often best positioned to blow the whistle on fraud are employees of the companies committing fraud [1]. Most whistleblowers first ring the alarm internally, voicing their concerns to management and even filing internal reports about the misconduct [2]. In fact, almost 90% of whistleblowers that ultimately filed a whistleblower suit had initially reported the wrongdoing internally [3]. However, whistleblowing carries major risks, especially professionally [4]. The False Claims Act (“FCA”) responds to these risks with robust anti-retaliation protections for whistleblowers [5]. The FCA provides relief to employees, contractors, or agents, who are retaliated against by their employer for their efforts to stop fraudulent conduct that could reasonably lead to a violation of the FCA or bring an FCA action [6]. A victim of this type of retaliation can bring an action against their employer for reinstatement, backpay, and “all relief necessary” to make them whole [7]. A whistleblower can bring a retaliation claim under the FCA up to three years after the retaliation occurred [8]. So what is needed to bring a claim?
To prevail on an anti-retaliation claim under the FCA, a plaintiff must prove that the:
1. Plaintiff engaged in protected activity
2. Employer knew of the plaintiff’s protected activity; and
3. Employer retaliated or took adverse action against the plaintiff because of their protected activity
What is a Protected Activity?
A protected activity includes lawful actions taken in furtherance of an FCA action or taken to prevent a violation of the FCA [9]. Common protected activities include investigations into the alleged fraud, a refusal to engage in a fraudulent scheme, and reporting misconduct outside an employee’s regular chain of command [10]. Protected activity must center an employee’s concerns about FCA violations, specifically fraud on the government [11].
Each circuit takes slightly different approaches to defining a protected activity, but core to each is the employee’s reasonable belief that their employer violated or was about to violate the FCA [12]. The majority of circuits adopt an objective reasonableness standard, which requires that an employee’s actions were motivated by a good faith belief that an FCA violation had occurred or was set to occur and that a reasonable employee in similar circumstances would also have that belief [13].
However, the employee’s fraud allegations do not have to be correct for the employee to have a viable retaliation claim, so long as their actions were based on a reasonable belief that the employer was engaging in fraud [14]. The employee does not have to actually filed a qui tam action to have engaged in a protected activity either [15]. The 2010 Amendments to the FCA expanded the scope of protected activity to include efforts to stop violations of the FCA, not just filing a qui tam [16].
What is Retaliation/Adverse Action?
Retaliation in the FCA-context refers to adverse employment actions taken against an employee by an employer or contractor, like termination, demotion, or harassment [17]. The majority of courts consider an adverse employment action to be any action taken by an employer that “might have dissuaded a reasonable worker” from making an allegation of fraud [18].
What is Required to Connect a Protected Activity to an Adverse Action?
To prevail on a retaliation claim, a plaintiff must demonstrate both that their employer had knowledge of the plaintiff’s protected activity and that the protected activity caused the employer to take adverse action against the plaintiff [19]. The majority of courts require plaintiffs to prove that but-for their protected activity, their employer would not have taken the adverse action against them [20]. However, some courts only require a demonstration that the plaintiff’s protected activity was a motivating factor in the employer’s decision to take adverse action [21].
No matter the circuit, the FCA remains a major source of protection for whistleblowers facing retaliation for their effort to pull the curtain back on fraud. In addition to the retaliation protections afforded by the FCA, there are other state and federal laws that may provide protections. If you believe you are a victim of FCA-related retaliation, consult with a qualified whistleblower attorney to understand your rights and options before coming forward.
[1] Why Whistleblowing Works, Nat’l Whistleblower Ctr., https://www.whistleblowers.org/why-whistleblowing-works/ (last visited July 17, 2026).
[2] Claire Sylvia & Emily Stabile, Rethinking Compliance: The Role of Whistleblowers, 84 U. Cin. L. Rev. 451, 458 (2018) (internal cites omitted).
[3] Id.
[4] See e.g., id. (noting personal and professional risks inherent in whistleblowing).
[5] 31 U.S.C. § 3730(h).
[6] Id.
[7] 31 U.S.C. § 3730(h)(1).
[8] 31 U.S.C. § 3730(h)(3).
[9] 31 U.S.C. § 3730(h)(1).
[10] See e.g., Mooney v. Fife, 118 F.4th 1081, 1092 (9th Cir. 2024) (holding an employee’s observations of billing errors and later reporting to upper management as protected activity); U.S. ex rel. Chorches for Bankruptcy Estate of Fabula v. American Medical Responses, Inc., 865 F.3d 71, 95 (2d Cir. 2017)(holding refusal to engage in the fraudulent scheme as protected activity).
[11] 31 U.S.C. § 3730(h)(1).
[12] See e.g., Jones-McNamara v. Holzer Health Systems, 630 Fed. Appx. 394, 400 (6th Cir. 2015) (holding that protected activities must arise out of “reasonable belief” in fraud); Chorches for Bankruptcy Estate of Fabula, 865 F.3d at 96 (holding that protected activity included actions “intended and reasonably could be expected to prevent the submission of a false claim to the government”); U.S. ex rel. Grant v. United Airlines Inc., 912 F.3d 190, 201 (4th Cir. 2018) (holding that protected activity is “motivated by an objectively reasonable belief that the employer is violating, or soon will violate the FCA”).
[13] See e.g., Jones-McNamara,630 Fed. Appx. at 400 (holding that in order for an activity to be protected the allegations of fraud must have “[grown] out of a reasonable belief in such fraud”); Sherman v. Berkadia Commercial Mortgage LLC, 956 F.3d 526 (8th Cir. 2020) U.S. ex rel. Campie v. Gilead Scis. Inc., 862, F.3d 890, 908 (9th Cir. 2017); Singletary v. Howard Univ., 939 F.3d 287 (D.C. Cir. 2019).
[14] See e.g., Guilfoile v. Shields, 913 F.3d 178, 187-88 (1st Cir. 2019); Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir. 2001) (noting that protected activity does not require that the plaintiff to have developed a winning qui tam action).
[15] Hutchins, 253 F.3d at 188.
[16] Dodd-Frank Wall Street Reform & Consumer Protection Act, Pub. L. No. 111-203, 124 Stat 1376 (July 21, 2010) (codified at 31 U.S.C. § 3730(h)(1)); see e.g., Grant, 912 F.3d at 201; Fife, 118 F.4th at 1094; Howard Univ., 939 F.3d at 296-302.
[17] 31 U.S.C. § 3730(h)(1).
[18] See e.g., Grant, 912 F.3d at 203 (applying Title VII discrimination framework to FCA-retaliation claims)(internal cites omitted); Lestage v. Coloplast Corp., 982 F.3d 37 (1st Cir. 2020) (applying Title VII discrimination framework to FCA-retaliation claims; U.S. ex rel. Bias v. Tangipahoa Parish School Bd., 816 F.3d 315, 326 (5th Cir. 2016) (applying SOX definition of adverse employment action);
[19] See e.g., Guilfoile, 913 F.3d at 187-88.
[20] See e.g., Lestage v. Coloplast Corp., 982 F.3d 37 (1st Cir. 2020); DiFiore v. CSL Behring, LLC, 879 F.3d 71 (3d Cir. 2018); U.S ex rel. Cody v. ManTech Int’l Corp., 746 Fed. Appx. 166 (4th Cir. 2018); U.S. ex rel. Barrick v. Parker-Migliorini Int’l, LLC, 79 F.4th 1262 (10th Cir. 2023).
[21] See e.g., Singletary, 939 F.3d at 293 (D.C. Cir. 2019) (holding retaliation must have been “motivated ‘at least in part’” by the plaintiff’s protected activity) (internal citations omitted); U.S. ex rel. Ziebell v. Fox Valley Workforce Dev Bd, Inc. 806 F.3d 946 (7th Cir. 2015).
