Whistleblowing, Public Policy, and Retaliation: Part 2 of 3

In Part One of this series, I discussed the qui tam provisions under the federal False Claims Act (FCA) and compared it to Ohio’s whistleblower statute. This post addresses the retaliation provisions.

The anti-retaliation provisions protect employees who have made reports against their employer for violations of the law. As stated in Part One, the FCA focuses on federal funding and Ohio focuses on the nature of the illegal action. Thus, if an employee reports to the appropriate authority that their employer is making a false claim for federal funding or is committing a criminal act, the anti-retaliation provisions protect the employee in the event their employer learns of this report and retaliates against that employee for making the report.

The anti-retaliation provision under the FCA protects employees under the following circumstances:

1. Employee engaged in activity protected by FCA, such as making an internal complaint;
2. Employer knew or should have known that the employee was engaged in such activity; and
3. The decision to discriminate against the employee was motivated in whole or in part by retaliatory animus.

The “discrimination” in the third element above includes actions against the employee such as discharge, demotion, suspension, threats, harassment, or a change in the “terms and conditions” of employment. Retaliation cases can be brought in conjunction with a qui tam action or separately. One important note is that the FCA, when a qui tam action is filed, considers whose responsibility it was to maintain compliance with federal standards. Thus, if the employee was responsible for compliance with the federal law or regulation that forms the basis of the violation, the employee may be precluded from bringing a claim for retaliation.

Unlike the FCA, Ohio law requires the employee to follow a series of steps before making an external report. A great deal of precaution must be exercised to ensure compliance with the whistleblower statute.

1. First, the employee must make verbal report to the employer.
2. The verbal report must be followed up with a written report to the employer detailing the action the employee believes is against the law.
3. After submitting a written report, the employee must give the employer at least 24 hours to “right the wrong.”
4. If the employer takes no action after the 24-hour period, the employee can then make a report to an outside authority.

The anti-retaliation provision will protect the employee from discriminatory actions that are motivated by the fact the employee made an external report only if the steps above are followed. The statute provides a non-exhaustive list of disciplinary actions that give rise to a retaliation claim, including suspension, termination, transfer, withholding pay increases or benefits, denying promotions, or reducing the employee’s pay or position.

Not only must the steps outlined above be followed in order to preserve the claim under Ohio law, but the employee must also bring the claim within 180 days of the date of the disciplinary action. If the claim is not brought within that time period, the employee will lose the cause of action forever.

Part 3 of this series will address Ohio’s public policy law and how it differs from Ohio’s whistleblower statute and the FCA.

By: Chelsea Long