PROTECTION TO "INFINITY AND BEYOND": WHY FORMER EMPLOYEES ARE NOT PROTECTED BY THE ANTI-RETALIATION SAFEGUARD OF THE FALSE CLAIMS ACT

53 Rutgers L. Rec. 219 (2026) | WestLaw ¹ | LexisNexis ² | PDF ³

0. ABSTRACT 

The False Claims Act (FCA) is a significant piece of federal legislation enacted to prevent  individuals or companies from engaging in fraudulent activities to fleece government programs.  Whistleblowers play a critical role in reporting these fraudulent actions. Unfortunately,  whistleblowers often become targets of retaliatory actions either during or after their employment.  The FCA's 1986 amendments provided protections to whistleblowers, who are identified as  “employees.” The Sixth and Tenth Circuits have disagreed on who is considered an “employee.”  The Sixth Circuit has agreed to extend whistleblower protection to former employees whereas the  Tenth Circuit has refused to do so.  

Part I of this note introduces the FCA, including the unique qui tam provision and relevant  statistics of the Act. Part II explains the history and background of the Act and provides detailed  reasonings why the circuit courts disagree as to the scope of the term “employee.” Part III provides  justifications why the Sixth Circuit's extension of protection to former employees is problematic.  This includes expounding upon how the Sixth Circuit mistakenly determined the anti-retaliation  provision was ambiguous, overly relied on overtly broader precedent and ignored legislative intent, 

and failed to use statutory canons to guide its analysis. Part IV addresses counter arguments to  extending protection, including the reasons that it would reduce reporting fraud and how most  whistleblower protection provisions in other federal statutes are frequently broadly examined by  courts. Finally, Part V attempts to provide a new approach to interpreting the word “employee,”  including using the economic reality test, which would verify an “employee” as a person who is  economically beholden to another.  

View The Entire Article ⁴

1. http://www.westlaw.com/find/default.wl?cite=53+Rut gers+L.+Rec.+219&FindType=F&ForceAction=Y&SV=Full& RS=ITK3.0&VR=1.0
2. http://www.lexis.com/xlink?showcidslinks=on&ORIGIN ATION_CODE=00142&searchtype=get&search=53 Rutgers L. Rec. 219
3. http://lawrecord.com/files/53_Rutgers_L_Rec_219.pd f
4. https://lawrecord.com/wp-content/uploads/2026/02/5 3_Rutgers_L_Rec_219.pdf