Whistleblower Rights

A variety of federal and Massachusetts whistleblower statutes exist. From preventing corporate fraud under the federal Sarbanes-Oxley Act to making healthcare safer under the Massachusetts Health Care Whistleblower Act, these laws are designed to encourage whistleblowers to step forward and report illegal activity. The following is a list of select federal and Massachusetts whistleblower laws:

• Affordable Care Act (ACA): Section 1558 of the Affordable Care Act prohibits employers from retaliating against employees for receiving a health insurance tax credit or subsidy. The ACA also prohibits companies from retaliating against employees who act as whistleblowers to report or testify about violations of this Act. Whistleblowers who face retaliation must file a complaint with the Occupational Safety & Health Administration within 180 days of the adverse action.

• Federal False Claims Act (FCA): Congress enacted the False Claims in 1863 during the Civil War out of concerns that suppliers to the Union Army were defrauding the federal government. Since that time, the FCA has undergone many revisions, but the general purpose remains the same: to combat fraud against the federal government. Under the False Claims Act, in what is known as a “qui tam” action, private persons aware of violations may file a lawsuit on behalf of the government. In such a lawsuit, the person is known as a “relator.” Under Section 3730(b), the lawsuit remains under seal for a period of time, during which time the government investigates the allegations and decides whether to intervene. The award to the relator is a percentage of the amount recovered. Under Section 3730(d), if the government intervenes in the qui tam action, the relator is entitled to at least 15% but not more than 25% of the amount recovered. This amount increases to at least 25% but not more than 30% where the federal government does not intervene. Under Section 3731(b), a relator must bring a lawsuit within 6 years of the violation, subject to certain tolling procedures. Finally, employees who are retaliated against for reporting an employer’s violation of the False Claims Act are entitled to reinstatement with the same seniority status, twice the amount of back, court costs, and reasonable lawyers’ fees. Under Section 3730(h), a whistleblower who suffers retaliation must file a claim within 3 years after the retaliation occurred.

• Occupational Safety and Health Act (OSHA): Section 11(c) of the Act prohibits employers from discriminating against workers who report unsafe working conditions. Employees must file a complaint with OSHA no more than 30 days after the unfavorable employment action.

• Sarbanes-Oxley Act (SOX): In 2002, the Sarbanes-Oxley Act was signed into law in response to several corporate accounting scandals, which shook public confidence in the United States financial markets. Under SOX, an employer covered under the Act is prohibited from retaliating against employees who filed a complaint or participated in a proceeding relating to securities violations and other financial improprieties. Retaliation against whistleblowers can range anywhere from termination to intimidation to the assignment of less favorable work projects. SOX whistleblowers who face retaliation must file a complaint with OSHA, a part of the Department of Labor, within 180 days of becoming aware of the adverse employment action. The Dodd-Frank Act, passed in 2010 in response to the Great Recession, extended this deadline from 90 to 180 days and added an “awareness” element to trigger the start of the statute of limitations deadline. Where the agency does not issue a final order within a certain period of time, whistleblowers may then file a complaint in the appropriate federal district court. Under Section 1514(c), SOX whistleblowers are entitled to reinstatement with the same seniority status, back pay plus interest, litigation costs, and reasonable attorneys’ fees.

• Massachusetts False Claims Act (MFCA): In 2000, Massachusetts signed its own version of the False Claims Act into law. Like the federal law, the MFCA compensates the relator as a percentage of the total recovery. The relator can receive from 15% to 25% of the amount recovered if the Attorney General intervenes and 25% to 30% if the Attorney General declines to do so. Section 5(k) and Section 5(j) also set similar statute of limitations deadlines for relators and employees who suffer retaliation. In recent years, the MFCA has been used to recover settlements against companies that engaged in financial improprieties negatively impacting the Commonwealth’s pension fund, overcharged public entities for prescription medications, and submitted inflated invoices for construction costs.

• Massachusetts Health Care Whistleblower Act: The purpose of this Act is to protect “health care providers” who report practices of a “health care facility” that pose a risk to public health from retaliation. The statute defines “health care providers” to include registered nurses, licensed practical nurses, physicians, physician assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists, and social workers. The statute also defines “health care facility” to include a hospital, clinic, convalescent or nursing home, charitable home for the aged, and community health agency. Under the Act, whistleblowers must file an action within two years of the retaliation and are entitled to reinstatement as well as lost wages and benefits.

• Massachusetts Public Employee Whistleblower Act: This Act prohibits the Commonwealth as an employer from retaliating against employees who report, testify about, or refuse to participate in activities that the employee “reasonably believes poses a risk to public health, safety or the environment.” Whistleblowers who suffer retaliation must file an action within two years of the retaliation and are entitled to reinstatement, up to three times lost wages and benefits, as well as reasonable costs and attorneys’ fees.

These statutes highlight the various forms of protection available to Massachusetts whistleblowers, as well as key deadlines applicable to and the types of recovery available under particular whistleblower claims.

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