Are Job Applicants who have blown the whistle at a prior job protected under the False Claims Act from hiring discrimination by prospective employers? Not if they file their cases in Kentucky, Michigan, Ohio or Tennessee. On November 18, 2014, in a case of first impression, the United States Court of Appeals for the Sixth Circuit, in Vander Boegh v. Energysolutions, Inc., held that the FCA protects only current or former “employees” and not “applicants” for future employment. The appellate court reached this conclusion after first noting that the FCA’s anti-retaliation provisions contain only the word “employee” and not the term “employment applicant.” The judges then looked up the word “employee” in two dictionaries and saw that the definitions covered only people who work or have worked for someone, not people who are applying for work. Without saying so, the court in effect blamed Congress for not using more comprehensive terms for who gets whistleblower protection under the FCA. The judges noted that even though Congress had earlier said one of the goals of the FCA is to protect whistleblowers from “blacklisting,” they reasoned that this should be interpreted to mean that only former employers are barred from refusing to hire a person for trying to stop fraud against the Government. Prospective employers can do so with complete impunity—at least in the Sixth Circuit.
Practice tip: The conservative majority on the current U.S Supreme Court favors the “plain meaning” analysis used by the judges in the Vander Boegh case generally, and has relied on a similar dictionary-driven way of deciding cases to limit the scope of the False Claims Act in the past. See, e.g., Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188 (May 16, 2011) (relying on a dictionary to define “report” and “investigation” to preclude FCA cases relying on FOIA requests). One should therefore expect Vander Boegh to become and remain the law of the land. That is, unless and until Congress decides to “fix” the FCA for the third time since 2009 to redress what it regards as wrong-headed Supreme Court decisions, by adding the phrase “job applicants” to the FCA’s list of protected persons.
To read the Boegh decision see Gary Vander Boegh, Plaintiff-Appellant, v. Energysolutions, Inc., Defendant-Appellee, No. 14-5047, (6th Cir., Nov 18, 2014), 2014 U.S. App. LEXIS 21810.
