Fast Legal Answers: What is a Qui Tam Lawsuit?

In today’s Fast Legal Answers series I will talking about “qui tam” cases. In short, a qui tam lawsuit is a claim brought by a private individual on behalf of the government. Most often, qui tam cases arise under the False Claims Act (31 U.S.C. §§ 3729–3733).

What does qui tam mean?

Qui tam is shorthand for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” meaning “who pursues this action on our Lord the King’s behalf as well as his own.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 US 765, 768 fn1 (2000). In plain English, it represents a circumstance where an individual brings a case on behalf of the government.

What is a qui tam civil action?

A qui tam civil action is a civil case that is brought by a private citizen referred to as a “relator” on behalf of the government. As mentioned above, these actions commonly arise in the context of the False Claims Act. Usually, the relator is a whistleblower who worked at a company that has defrauded the government of money.

What is the False Claims Act?

The False Claims Act is a law intended to encourage individuals to protect the federal government’s interests by initiating suits where the government has been defrauded–subject to false claims–by individuals or corporate entities. Typical examples of cases brought under the False Claims Act include medicare fraud, overcharging by government contractors, and the avoidance of paying customs duties for imported merchandise.

Why would someone file a case on behalf of the federal government?

Relators that initiate qui tam actions can recover between 15-30% of the total judgement the government receives. 31 U.S.C § 3730(d). Many False Claims Act (FCA) cases result in large recoveries as a result of the scale of government contracts and the treble damages allowed under the FCA. Accordingly, 15-30% of a 100 million dollar judgment can be a very large incentive for qui tam claimants to initiate cases on the governments behalf?

What kind of recovery can qui tam relators get?

As mentioned above, the recovery depends on the total judgment, but the relator can typically expect to get between 15-30% of the total judgment. Their attorney will likely take 40% of that 15-30% subject to reimbursement for any costs incurred.

What should I do if I know about a potential False Claims Act issue?

If you personally have witnessed a violation of the False Claims Act at your place of work you should consult with an attorney. These are extremely complex cases and take many years to litigate. There are many procedural hurdles that must be followed not only to preserve the relator’s right of recovery but also to assure the entire lawsuit is viable. For example, the information the qui tam case is based on must not have been publicly available, otherwise, the relator may not be entitled to any share of the recovery. Additionally, FCA cases filed by relators must be done so initially, under seal to allow review by government officials.

If you have questions about the False Claims Act or a potential qui tam action. Do not hesitate to contact us today.

Fast Legal Answers: What is at-will employment?

In today’s Fast Legal Answers series I am addressing a core employment law topic: at-will employment. The rules related to at-will employment control the bulk of private sector employment arrangements, yet many employees have no idea what at-will employment is.

 

What is at-will employment? At-will defined.

At-will employment is what it sounds like, you serve at your own will, and the will of your employer. So, you can leave your job at any time, and your employer can terminate your employment at any time.
At-will employment is explicitly recognized in California Labor Code section 2922, which provides:

An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.

The above labor code section also means that, absent a specific term to the contrary, there is a presumption that all employment in California is at-will employment.

This concept is simple enough, but when you think about it, the implications are pretty harsh. Based on the simple definition alone, this means if you are an at-will employee whether on your second day of work, or the day before your 30th work anniversary, your boss could come in and fire you for any or no reason at all. The California Supreme Court has echoed this sentiment “[a]n at-will employment may be ended by either party `at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 335 (2000).

 

If I am an at-will employee and I’m fired does that mean I cannot challenge my termination?

No. In some instances your status as an at-will employee may drastically limit your ability to challenge your termination but depending on the facts of your case you may have a great argument that your employer violated a law when they fired you, or that based on some agreement, the employer could not terminate you the way they did.  Obviously, there are laws that limit the ability of the employer to fire someone for certain reasons, like if the firing decision is founded on a discriminatory animus.

 

So if I am fired, how do I challenge my termination?

Generally, when an employee is terminated two essential arguments are raised: 1) that you were not an at-will employee subject to summary termination at the employer’s will and, 2) your termination was in violation of one or more laws.

 

1. Arguing you were not an at-will employee

Some employees successfully argue that their employment was not actually at-will, but was controlled by some agreement or understanding they had with their employer regarding your relationship.

Contracts

Employers will have employees sign employment agreements or contracts when they are hired. Typically, this agreements will reiterate that the employment is at will and that the employee can be terminated at the employer’s discretion. However, if the agreement contains terms like “the employee will only be terminated for good cause” or other similar terms, that agreement can be used to demonstrate that the employment was not at will.

This is why it is important to retain copies of all agreements you sign when you being your employment. If you can provide these documents to your attorney when you are consulting with them about your termination it will help them determine very quickly whether any arguments can be made regarding your contractual relationship with your employer.

Implied contract claim

Employers often provide their employees with employee handbooks or other written materials.  If these materials suggest that the employment relationship is not at will, or that employees will only be fired “for cause” or for certain misconduct than this would be strong evidence of an implied employment contract. California courts have recognized that when an employer promulgates formal personnel policies and procedures in handbooks, manuals, and memoranda disseminated to employees, a strong inference may arise that the employer intended workers to rely on these policies as terms and conditions of their employment, and that employees did reasonably so rely. Scott v. Pacific Gas & Electric Co., 11 Cal.4th 454, 465 (1995).

Covenant of good faith and fair dealing

In some instances California has recognized that a termination after a long period the implied-in-law covenant of good faith and fair dealing contained in all contracts. This means that if you terminated for no after years of being a model employee, your employer’s actions may violate general notions of acting reasonably and dealing fairly. This theory is difficult to prove, but is recognized in certain instances in California. See, e.g., Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311 (1981), Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).

 

2. Wrongful terminations – firings contrary to law

Even if you are an at-will employee, your termination cannot be the result of an unlawful action. If your employer fires you because you tell them you are pregnant, regardless of whether you are an at-will employee or not, that would be a clear violation of law.

Examples include

  • Laws against discrimination based on:
    • Sex
    • Age
    • Color
    • Race
    • National Origin
    • Pregnancy
    • Disability
  • Using federally protected leave Family Medical Leave Act (FMLA)
  • In some instances, your involvement in the reserves or other military deployments
  • Engaging in protected Whistleblower Activity

I’m not sure if I am an at-will employee or not

So I read everything above, but I still have no idea if I am an at will employee or not…
Well, I don’t blame you, it can be hard to determine whether or not you are an at-will employee. Generally, most employees are considered at-will employees, but the facts of each case are different and need to be reviewed carefully. These issues can be complicated, and seemingly insignificant facts can greatly affect the legal conclusion of whether employment is at-will or not. If you are in doubt you should consult an attorney, explain your case, provide as much documentation as you can, and they will help you to determine your status as an at-will employee and what options you have to challenge your termination.

 

I’m not sure my termination was illegal or not

If you think you were terminated for one of the above listed statutorily protected reasons, you should consult with an attorney to discuss your claim. Essentially these claims require that you demonstrate that your termination was the result of a violation of one of these laws. It can be difficult to prove the motivations of your employer and even more difficult to get evidence from the employer to prove the same. Accordingly, you should consult with an attorney to determine the merits of your case and assist you through the filing of your complaint, the discovery process, and either trial or settlement.

 

Conclusion

I hope this article explained at-will employment and gave you some ideas of the implications at-will employment has for employees facing termination. Hopefully, you also understand some of the more common theories that are advanced to challenge alleged at-will terminations and are better educated should you be dealing with such issues yourself.

If you have any further questions feel free to contact our office for a free consultation.

Fast Legal Answers: California Education Code § 44929.21 – non-reelection of probationary teachers

 

***NOTE TO POTENTIAL CLIENTS: THE IVANCIE LAW PRACTICE IS NO LONGER HANDLING NON-REELECTION OR CALIFORNIA EDUCATOR CASES. THE BELOW INFORMATION IS FOR REFERENCE ONLY***

 

Today in my Fast Legal Answers series I am going to discuss a California Education Code § 44929.21(b). Probably one of the harder-to-read statutes I’ve looked at in a while, it covers the process school districts follow when they decide not to reelect a probationary teacher in California. The relevant part of the statute provides:

(b) Every employee of a school district of any type or class
having an average daily attendance of 250 or more who, after having
been employed by the district for two complete consecutive school
years in a position or positions requiring certification
qualifications, is reelected for the next succeeding school year to a
position requiring certification qualifications shall, at the
commencement of the succeeding school year be classified as and
become a permanent employee of the district.
   The governing board shall notify the employee, on or before March
15 of the employee's second complete consecutive school year of
employment by the district in a position or positions requiring
certification qualifications, of the decision to reelect or not
reelect the employee for the next succeeding school year to the
position. In the event that the governing board does not give notice
pursuant to this section on or before March 15, the employee shall be
deemed reelected for the next succeeding school year.
   This subdivision shall apply only to probationary employees whose
probationary period commenced during the 1983-84 fiscal year or any
fiscal year thereafter.

(emphasis mine)

Can you explain that law in plain English?

The law provides that if a probationary teacher is employed by the district for two consecutive years they will become a permanent (tenured) teacher at the start of their third school year. The district can decide not to reelect a probationary teacher in the first two years of the probationary period.  However, they must do so by March 15th of the last probationary school year. If the district does nothing (doesn’t notify the teacher of non-reelection prior to March 15th) the teacher is deemed reelected for the following year.

What are the core principles of that statue in visual form?

Visual guide to California Education Code § 44929.21

So what reasons does the district have to give for not reelecting me?

Actually, none. If you are a probationary teacher the district can decide not to reelect you for any or no reason at all. All they have to do is get you the notice of non-reelection before March 15 of your second complete school year as a certified probationary teacher. California courts have recognized the great discretion districts have in this regard: The public school district has “the absolute right to decide not to reelect probationary teachers without providing cause or other procedural protections.” Sunnyvale Unified School District v. Jacobs, 171 Cal. App. 4th 168 (Ct. App. 2009).

Well that doesn’t seem fair…

Contrasted with the great amount of protections for permanent teachers it certainly does not seem fair. But this provisions allows districts to weed out underperforming or apparently troubled teachers before they become tenured, and it is much more difficult to fire them. The California Court of Appeals has openly acknowledged this balance “[t]his seemingly draconian provision [talking about § 44929.21(b)]  represents the Legislature’s balance between the rights of the teacher and the overall purpose of the system of public education, which is to educate the young.” Sunnyvale Unified School District v. Jacobs, 171 Cal. App. 4th 168 (Ct. App. 2009).

What are my options?

Well your options are somewhat limited. Since the district has the absolute right not to reelect you while you are a probationary employee, it is very difficult to challenge a non-reelection. Collateral challenges to non-reelections through a claim of protected whistleblowing activity are not always viewed favorably by the courts. See, e.g., Conn v. Western Placer Unified School Dist., 186 Cal. App. 4th 1163, 113 Cal. Rptr. 3d 116 (Ct. App. 2010) (“to exalt these ‘disclosures with whistle[-]blower status would create all sorts of mischief. Most damagingly, it would thrust the judiciary into micromanaging employment practices and create a legion of undeserving protected `whistle[-]blowers’ arising from the routine workings and communications of the job site.”). For courts to accept whistleblowing claims the disclosures need to be of significant magnitude including violations of state or federal law. Claiming that your non-reelection is based on discrimination, say for your sexual orientation, can sometimes be grounds for getting a decision reevaluated or getting concessions from a district. However, discrimination cases are extremely fact dependant.

Ultimately, each case is different. Non re-elections are difficult to challenge; it is an uphill battle. However, if you think your non-reelection was a result of protected whistleblowing activity or discrimination you should contact an attorney. Contact us for a free consultation.

Conclusion

Probationary teachers have drastically limited rights when it comes to non-reelections. If you are a teacher that has been notified of your non-reelection you may want to pursue a resignation in lieu of non-reelection. Districts have broad discretion when it comes to reelection. So, in some cases, rather than trying to fight a reelection it may be better just to move on and find employment elsewhere. If you do want to challenge a non-reelection you need to consider whether your non-reelection was based on your membership in a protected class or a protected disclosure you made.

Fast Legal Answers: Failure to maintain a condition of employment

For my fourth post in the Fast Legal Answers series, I will discuss a common federal disciplinary charge: failure to maintain a condition of employment. This charge is unique in that it typically results in removal of the federal employee. Indeed, this means removal can stem from something fairly benign such as losing computer or building access. Accordingly, some agencies may try to use the failure to maintain a condition of employment charge to remove a trouble employee that has not engaged in other, more substantive, misconduct.

What are conditions of employment?

Conditions of employment include professional certifications, such as bar membership for attorneys, a commercial driver’s license for positions where driving is a requirement, medical credentials for medical professionals, or the ability to carry a firearm for law enforcement officers. Essentially, a condition of employment is any license, qualification, training, or certification that is necessary to perform a specific job.

security clearance (S, TS, TS-SCI, etc.) for national security positions is special condition of employment. As discussed further below, firings related to loss of a security clearances are harder to challenge and have limited appeal rights.

Other, less commonly cited conditions of employment include access to computer systems and government buildings.

What is an example of a failure to maintain a condition of employment?

Attorney’s that work for federal agencies are required to maintain active bar membership in at least one state. Let us assume our example attorney, John Smith, fails to pay his bar membership fees and fails to complete his required continuing legal education courses. As a result, the state bar rescinds his membership. Shortly thereafter, Mr. Smith’s agency finds out that he is no longer licensed by a state bar to practice law. The employing agency then initiates removal proceedings for failure to maintain a condition of employment. Absent procedural errors or other substantive misconduct, Mr. Smith’s removal for failure to maintain a condition of employment would likely be sustained by the MSPB.

What can I do if I am removed for failure to maintain a condition of employment?

If you a removed for failing to maintain a condition of employment, in some cases you can challenge your removal before the MSPB. You can read more about the process an MSPB case takes in our MSPB legal guide. This entails filing an appeal of the adverse action and potentially attending a hearing where the agency presents the evidence against you and a judge makes a determination as to whether the agency has met its burden of proof. See Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007).  Note that the filing deadlines for an MSPB case are very short (30 days) and you should consult with an attorney as soon as you receive a notice of adverse action.

What rights do you have if you a fired because you lost a security clearance?

If you are removed from the federal service because you lost a security clearance, typically your rights are much more limited. That is because there are essentially two-tracks for reviewing adverse actions against government employees. Actions that are “for cause” are entitled to review, actions that are based on “national security concerns” such as the revocation of security clearance are not. The Supreme Court addressed this issue in Department Of Navy V. Egan, 484 U.S. 518 (1988), where it concluded the MSPB does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action.

Two track system illustrated:

Two track system, for cause firings vs. national security concerns federal adverse actions

 

Note that some agencies have special regulations related to removal of clearances and those administrative processes may control in your case. In all likelihood, however, you will not have the right to MSPB review of your removal. Instead, you will have to rely on whatever internal review has been established by your agency.

Conclusion

This is a complicated topic because there are many different ‘conditions of employment’ that can result in an adverse action if they are not maintained. Further, certain conditions of employment are treated differently than others with varying appeal rights. The most common example being security clearance determinations. It is important for employees to understand what, if any, conditions of employment exists related to their position and to be apprised of their rights and obligations related to those conditions. Finally, it is critical that if you are removed for failing to maintain a condition of employment that you contact and consult with an experienced federal employment law practitioner to get expert advice on this very unique area of law.

Fast Legal Answers: How do I prepare for my deposition?

For my third post in the Fast Legal Answers series I will change gears and go from purely legal advice to the more practical. Today, I will be talking about how to prepare for a deposition. I’ll go into the basics about what to expect when your deposition is being taken, common questions, and how to properly respond to especially tricky questions.

Essential things to know before getting your deposition taken

 

What is a deposition?

A deposition is just another way to get testimony from an individual. Typically depositions are taken during the discovery phase of a case.

When you give a deposition you are under oath. This means your deposition testimony has the same weight as if you were testifying in court. So, you should take it as seriously as if you were going to testify in front of a judge and jury even though you are just going into a conference room with a few attorneys and a reporter.

How long does a deposition last?

Typically a deposition will only last one full day. The length of any deposition depends on the complexity of the case itself and other factors, such as the start time and the number of breaks taken.

The rules related to to the maximum length of a deposition will depend on the court or administrative body hearing your case and if the attorney’s have made any special requests for a longer deposition. For example, the federal rules of civil procedure limit a deposition to one day and 7 hours total. FRCP 30(d)(1)

How do I prepare?

Your attorney should work with you the week before your deposition. The attorney should give you advice similar to the advice in this article related to how you should answer questions and when you should ask for clarification.

Obviously, the attorney will need to go over your case in great detail. Focusing on the key issues and explaining the likely questions you are going to get related to those issues. How you approach these questions could be critical to the outcome of your case. There is an old quote lawyers have about their client’s deposition:

You almost never win your case because of your client’s deposition, but you certainly can lose it if things go south.

Answering Questions – Tips and Advice

So the deposition is really all about answering questions the other side’s attorney will ask you. It is important that you make sure you understand the question that is being asked of you. You should also only answer the question being asked. This means you do not volunteer information.

Do not speculate

Questions like, “Why do you think Tom called you after the accident?” call for speculation. Sure, you can probably guess why Tom called you, but you certainly do not know what Tom was thinking and you shouldn’t speculate when you answer questions. A proper response to a question like this would be: “I’m not sure why Tom called me, he is the one who can answer that question.”

If you do not understand a question, ask for clarification

Attorneys sometimes ask terrible-compound-rambling-unclear questions. When they do, which will likely happen a few times in your deposition, simply ask them to rephrase. That way you are clear on the question being asked which allows you to respond appropriately.

Moreover, don’t guess, speculate, or feel forced to answer a question. If you honestly don’t remember, just say so. But do not make up an answer because you feel pressure to give one. If a question is unclear to you it is always appropriate to ask for clarification. Indeed, you should never answer a question you don’t understand.

Answer only the question asked

If a yes or no answer is appropriate then answer with a yes or no only. Volunteering information generally is not a good idea.

Don’t unnecessarily elaborate or volunteer information:

  1. Incorrect approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes, I really was terrified of those flying monkeys. I’ve had nightmares about them the last 30 years.
  2. Correct approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes.

Questions that might seem strange

When you first start your deposition the other attorney may ask you a few questions that sound strange. They may ask you if you have been convicted of a felony, are impaired or under the influence of drugs, or otherwise are have some limitation that would prevent you from answering truthfully and fully. These are foundational questions that are necessary to make sure you are in the right frame of mind. This  prevents you or your attorney from making the argument that the bad answers you gave in your deposition were the result of some medication or other impairment you were suffering from during questioning. Do not take these questions personally, and do not get thrown off by them.

Court reporter tips

Because the court reporter will be creating a transcript of the deposition it is important that only one party talk at a time. So, make sure the attorney finishes his or her question before you start your answer.

Also, clients commonly provide a yes or no answer by shaking their head or mumbling something like “uh-huh.” This leads to an ugly and unclear transcript. So, make sure you give an audible “yes” or “no” to all questions.

Mike’s Three Golden Rules for depositions:

  1. Tell the truth.

  2. Don’t speculate. It is totally acceptable to say “I don’t know” or “I don’t remember” if that is the truth. But if you know the answer you would be committing perjury if you say “I don’t know” 

  3. Answer only the question asked. DO NOT VOLUNTEER INFORMATION. 

 

Closing

Giving a deposition can be very intimidating, especially if you have never experienced the process before. A good attorney will prepare you ahead of time and get you familiar with the process. They will also inform you of any “landmines” to avoid and issues that are critical to the case. The key is to remain composed and make sure you understand the questions that are asked of you. Go slow, take your time, and do not feel pressured to “make the other attorney happy” with you answers. Finally, if you follow my three golden rules above, you will avoid the majority of the issues that could lead to a bad deposition.