Was the Federal Court Responsible for a Whistleblower Losing His New Job?

The below case regarding a current employer being accused of retaliating for a whistleblower’s past employer (from the Legal Intelligencer article of May 26, 2015,) has the potential to set precedent that can be used outside of whistleblower actions.   However, the allegations may not go quite far enough, as currently when you sue an employer for discrimination, the federal courts immediately post it on their website. The implication here is that the courts themselves are guilty of creating this situation.

As most employers run background checks by googling an applicants name, it can be presumed that they will shy away from anyone who has sued a past employer.  These cases should automatically be sealed, but thus far the federal courts have refused to do so, and continue to jeopardize the chances for people exercising their rights in court, to get further employment. What good are civil rights laws if people are being intimidated out of using them?

This brings to mind the President Obama’s 2009 Ledbetter Fair Pay Act, which has not received enough recognition for the bold statement that it really delivers.  In effect, it calls out the U.S. Supreme Court for colluding with corporations, and is an example of the failings of the entire legal system.  The Act states: 

“The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress…”The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.”

Judge Certifies False Claims Act Retaliation Issue

A federal judge has certified for immediate appeal the first-impression issue of whether anti-retaliation provisions in the False Claims Act apply to an employee who filed a whistleblower suit against a former, unrelated employer.

Although U.S. District Judge Joy Flowers Conti of the Western District of Pennsylvania denied Mylan Pharmaceuticals’ motion to dismiss a retaliation claim brought by a fired Mylan employee, who had pursued a qui tam action against his previous employer, Cephalon, she further decided to certify the issue for appeal to the U.S. Court of Appeals for the Third Circuit.

Among other things, Conti said that there was substantial ground for a difference of opinion on whether the anti-retaliation language in the FCA applied only to an employer that was the subject of a whistleblower action, or if it also related to an employer that fired an employee after discovering the employee was a whistleblower against a former, unrelated employer.

“While the plain text of Section 3730(h)(1) [of the FCA] does not restrict liability to employers that are the target or related to the target of the FCA investigation, the controlling precedent in this circuit holds that as a ‘general rule,’ the employer must be on notice of the ‘distinct possibility’ of FCA litigation against the employer,” Conti said in Cestra v. Mylan, which was issued May 22. “The parties have not identified, and the court’s research has not yielded, any authority in which a court has held that the anti-retaliation provision of the FCA applies to an employer that fires an employee for engaging in protected conduct against an unrelated entity.”