False Claims Act (FCA) retaliation claims pose a unique challenge for health care employers. Unlike FCA fraud cases, these claims are easier to prove and often survive even when the underlying FCA allegations fail. With Rule 9(b)’s heightened pleading standard out of the picture, employers face real exposure if they lack strong documentation and a culture that supports compliance. This article outlines practical steps, such as consistent recordkeeping and clear non-retaliation policies, to help organizations mitigate risk and protect against costly litigation.

KEY POINTS:

• FCA retaliation claims are easy to bring and hard to defend. Employees need only show minimal evidence to establish a retaliation claim, and these claims can survive even if the underlying FCA allegation fails.
• Proper documentation is critical. Consistent, contemporaneous documentation of performance issues and disciplinary actions is one of the strongest defenses against retaliation claims. Clear protocols and uniform application across employees are essential.
• A strong compliance culture is important. Companies should embed non-retaliation policies in their Code of Conduct, provide confidential reporting channels, and reinforce compliance through regular training and communication to reduce whistleblower risk.
• Privilege should be managed carefully. Dual roles for in-house counsel can complicate privilege protections. Separate investigations from employment decisions, engage outside counsel early...

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