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Boston Whistleblower Law Blog

Tips for pregnant employees who experience discrimination

Maintaining a job in today’s economy may be tough for the average worker. If you are a pregnant woman, the road may be that much more difficult. Essentially, not every employer understands the rules governing pregnant workers and may take actions that are against the law. Because of this, it is important for pregnant workers to protect themselves against unscrupulous employers.

This post will provide some helpful tips.

Why you should have a termination letter

If you are concerned that you are on the verge of being terminated from your employment, or you have recently been let go, it is important that you have a copy of your termination letter. While this is not construed to be legal advice, it is vital to have this information for a number of reasons. This blog post will explain why.

Documentation of shortcomings - Indeed, employment in California is on an "at will" basis. This essentially means that an employer can decide to terminate you for any reason, just as long as it is not an illegal reason. Because of this, a termination letter that documents your shortcomings could be helpful if it details reasons for your firing that are illegal under California law (i.e. complaining about harassment, reporting dangerous working conditions). 

How Facebook could ruin your chances at obtaining justice

If you're familiar with crime dramas, you are likely familiar with the famous Miranda warning, "whatever you say can be used against you in a court of law" commonly barked out by arresting officers. That warning also has significance in real life; not for people who would be arrested, but for employees who post about their lives on social media sites.

Essentially, statements on Facebook or Twitter, as well as photos posted through Instagram are matters of public record. This means that investigators can easily discover them, even if they are deleted or taken down. Not only will the statements be preserved, there is an essential time stamp that indicates when the statements were made. This could have some added significance for rants made during work hours. 

The 1964 Civil Rights Act turns fifty

Yesterday, the 1964 Civil Rights Act turned 50 years old. The law, which was signed by President Lyndon B. Johnson is largely credited for putting the country on the path to where it is today. It was signed with Rev. Dr. Martin Luther King and Attorney General Robert F. Kennedy by Johnson’s side. The two figures, who would later be assassinated in 1968, were two of the many pioneers in the Civil Rights Movement in the 1960’s.

Trading company settles with SEC on whistleblower case

Those who have followed this whistleblower blog know all too well the turmoil that employees who report illegal (and potentially illegal) activities go through. It is not easy to blow the whistle on improper activity, because the threat of retaliation is usually a strong deterrent.

However, some employees muster the courage to do the right thing, and federal law protects them when they do so.

Against this backdrop, New York based Paradigm Capital Management was charged with retaliating against an employee who reported suspicious and potentially illegal activity. Essentially, the employee who reported what he saw to the Securities and Exchange Commission (SEC). Shortly afterwards, he was demoted from his position has head trader to a lowly compliance assistant. 

Some People Just Don't Get It

Followers of this False Claims Act blog know that we've written about pharmacy compounders several times in the past (see blog 1, blog 2, blog 3). The meningitis outbreak caused by lax procedures at New England Compounding served as a wake-up call to regulators and to Congress, leading to new legislation clarifying the boundaries between federal and state oversight of these companies.

Ambulance company allegedly gets in on the overbilling act

We've written frequently on our blog about hospitals and doctors that attempt to boost their profits by overbilling government programs such as Medicare or Medicaid. For example, clinics or doctors' offices submit claims for more-expensive procedures than were performed or -- more outrageously -- perform unneeded procedures on unsuspecting patients in order to collect a larger payoff. As a recent case shows, however, it's not just brick-and-mortar locations that are being accused of this behavior.

An ambulance service in Tennessee recently agreed to a $500,000 settlement to settle a whistleblower lawsuit brought under the False Claims Act. The original lawsuit was filed by an employee of the company who brought the alleged wrongdoing to the attention of the federal government. According to the complaint, the company often intentionally misstated the services it provided in order to collect more reimbursement from the government programs. For example, when employees provided what is known as basic life support, it was often coded instead as advanced life support -- something that is reimbursed at a higher rate.

DOJ Weighs in on Circuit Split on False Claims Act First-to-File Issue

A key provision of the False Claims Act is the so-called "first-to-file" bar which prevents a case from proceeding if there is a "related" action "pending" at the time the case is filed. After the United States Court of Appeals allowed a whistleblower's case to proceed despite the fact that another related case had at one time been filed, the Supreme Court has been asked to grant a petition for a writ of certiorari to review this question. Recently, DOJ filed an amicus brief expressing its view that the Fourth Circuit correctly interpreted and applied the FCA's first-to-file provision and the issue does not merit review by the Supreme Court. See brief. The Fourth Circuit held that once a case is no longer "pending" (e.g., has been dismissed and there is no pending appeal), the first-to-file provision does not bar a relator from filing a related case. While this outcome would seem obvious given the plain language of the FCA provision and the meaning of the word "pending," the defendant in the Fourth Circuit case is arguing that the recent contrary decision by a panel of the United States Court of Appeals for the D.C. Circuit creates a split in the circuit courts that merits Supreme Court review and resolution. In response, the Solicitor General and DOJ argue that the Fourth and Seventh Circuits are in agreement with DOJ's view, that the Tenth Circuit has agreed (albeit in dicta), and that the D.C. Circuit decision was a panel decision only with a vigorous dissent with a petition for rehearing en banc now pending. As such, DOJ views the split as the a narrow one that may well be resolved by the D.C. Circuit itself, and thus Supreme Court review is not merited. See Brief at 25-29 (pdf pages, not brief pages). We expect the D.C. Circuit will hear the case en banc and will ultimately agree with the other Circuits, rather than give the FCA a tortured reading. We also expect the Supreme Court will not grant certiorari to hear the Fourth Circuit case. Nevertheless, the case is a good reminder of the many potential pitfalls or land mines a relator and his or her counsel may encounter as well-funded defendants lob myriad arguments and defenses into the courts. Both the whistleblower and their counsel should expect significant (and often unforeseen or unknown) risks anytime a qui tam case is filed. 

False Claims Act Snares Yet Another Hospital for Unneeded Heart Surgeries

Earlier this year, we wrote on our whistleblower law blog about a case out of Kentucky involving doctors who recommended expensive cardiac procedures for patients who didn't need them. That case, filed under the False Claims Act, led to a settlement of more than $16 million, including $2.5 million for the whistleblowers who brought the case to the attention of the federal government.

This is hardly the only case involving unnecessary cardiac care; in fact, at least 12 cases involving similar allegations have settled since 2006. One of the most recent was another Kentucky hospital that allegedly represented a danger to public health by its overuse of stents, cardiac catheterizations and other procedures.

DOJ Tells Supremes Wartime Suspension of Limitations Act Applies to False Claims Act Cases

The Solicitor General of the United States has filed an amicus brief with the Supreme Court persuasively arguing that the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 ("WSLA"), applies to a civil fraud claim brought by a private whistleblower under the False Claims Act, and effectively extends the FCA's statute of limitations so long as the United States is at war. See brief. At issue is whether a FCA case brought against Kellogg Brown and Root may proceed as the Fourth Circuit Court of Appeals found or whether it is barred by the FCA's statute of limitations. The WSLA enacted during WWII and amended in 2008, tolls the statute of limitations for "offenses" involving fraud against the United States. It has been dusted off as a result of the Iraq war and the war on terrorism, and was utilized by the United States to extend the statute of limitations in criminal cases as early as 2008. More recently, DOJ began to use the WSLA in civil fraud cases arguing successfully that the word "offenses" applies to both criminal and civil violations of law, including the FCA.  While the rationale of the WSLA was in part that the United States and its agencies would lack the resources to investigate fraud during times of war and that it could also take time after a war ends for fraud to be discovered, the WSLA has been used successfully not only in cases alleging fraud against the Departments of Defense and Homeland Security, but also in cases involving bank fraud, health care fraud, and highway construction fraud. See, e.g., id. at 23 (on the pdf pages not on the brief). Indeed, this would seem to make sense given that the enormous cost of over a decade of war has drained and diverted money and personnel from fraud investigations as evidenced, for example, by cuts in funding at DOJ and other agencies charged with fighting fraud.  And, tolling the statute of limitations is of great advantage to the government since it expands the time period for which it can collect damages and civil penalties under the FCA. Since there is to date no disagreement in the courts that the WSLA applies to civil fraud cases, DOJ has told the Supreme Court that the issue does not merit its granting Kellogg's petition for a writ of certiorari and reviewing the Fourth Circuit's opinion. Brief at 15-24 (these are the pdf pages not the briefs pages). 

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