Can my employer legally retaliate against me even after I have been terminated? A recent decision by the Sixth Circuit Court of Appeals Says: No, Even Where the Text of Statute Itself is Silent on the Point.

Title VII of the Civil Rights Act and the Age Discrimination in Employment Act prohibit retaliation from employers against their former employees after they have been fired and seek legal action against it. In employment law parlance, this type of targeting is called “post-employment” retaliation.

What is Post-Employment Termination?

Typical examples of post-employment termination include, (i) failure to re-hire; (2) defaming or blackballing an employee; (3) filing a frivolous legal claim; or (4) making a false police report or specious complaint to a licensing board.

But the law on protection from post-termination retaliation is murkier under the False Claims Act (“FCA”), which prohibits discrimination and retaliation against “any employee” who tries to stop their employer’s defrauding or overbilling of the federal government.

Private Employers With Federal Contracts Most At Risk

Post-employment termination cases typically arise where private employers with federal contracts overcharge the federal government for services provided, or in the medical setting where health care systems bilk the federal government’s Medicare or Medicaid programs.

The FCA does not expressly prohibit retaliation against former employees; it just prohibits retaliation against “any employee.” Are former employees also protected?

Sixth Circuit Court of Appeals Holds FCA Anti-Termination Provision Extends to Post-Employment Retaliation

The Sixth Circuit Court of Appeals recently held that, while the FCA does not explicitly say whether it pertains only to current employment,” the statute’s use of the term “any employee” could reasonably apply to any former employee as well. David Felton v. William Beaumont Hospital, F.3d 2021 WL 1204981, (6th Cir. March 31, 2021).

The FCA’s text also affords reinstatement as a consequence of unlawful termination, and thus clearly anticipated protecting former employees since one cannot be reinstated if he or she is a current employee.

Protecting Incentives for Whistleblowers of Fraud on the Government

Most central to the court’s ruling was Congress’ legislative intent in passing this law in the first place—to protect and incentivize employees to oppose fraud on the government while they are employed. Had Congress ruled otherwise and allowed “open season” on whistleblowers after they had been unlawfully terminated, whistleblowers would be disincentivized to report and the congressional intent would have been thwarted.

Unfortunately, not every court has ruled this way. The Tenth Circuit Court of Appeals adopted a strict reading of the FCA and refused to recognize protection against post-termination employment because that protection is not expressly stated in the law itself.

Contemplate Whistleblowing While You’re Employed

Long story short, it is always prudent to consult with an experienced employment attorney while you are employed and contemplating whistleblowing activity. Even with a federal statute like the FCA, federal law may extend different protections depending on where you live because the federal judges in those jurisdictions may interpret the same law differently.

Our firm’s Walking Paper’s Podcast is also an excellent place to start while you are waiting to consult with a lawyer.

Authors: Josh Van Kampen, Esq. & Kathryn Hagerman, Esq.

Josh Van Kampen

Joshua R. Van Kampen is the founder and leader of Van Kampen Law, PC in Charlotte, North Carolina. In 2017, Super Lawyers rated Josh in its “Top 100” attorneys in the state. At 45, Josh is among the youngest attorneys in North Carolina to receive that designation. The road to the Top 100 in North Carolina started in Chicago, Illinois where Josh worked as an associate for two nationally recognized employment law defense firms: Seyfarth Shaw and Franczek Radelet. During his six years as a defense attorney, Josh defended Fortune 500 companies as well as smaller businesses in age, race, sex, disability, sexual harassment, traditional labor, and wage and hour litigation. Josh’s defense experience also included counseling employers on litigation avoidance and sexual harassment training.