Blacklisting Allowed? Whether the False Claims Act Protects Former Employees from Retaliation

By Hunter Baehren

Employers commonly blacklist whistleblowers.  Despite its frequency, blacklisting remains unaddressed in many federal whistleblower statutes.  These statutes typically contain antiretaliation provisions protecting “employees,” but since victims of blacklisting are former employees, protection under federal law is uncertain.  In Robinson v. Shell Oil Co., the Supreme Court interpreted the term “employee” in the antiretaliation provision of Title VII of the Civil Rights Act to include former employees.  Courts disagree, however, on Robinson’s relevance in interpreting the term “employee” in the antiretaliation provisions of other federal whistleblower statutes.  A circuit split has emerged exemplifying this tension: the Sixth Circuit recently found that the term “employee” in the False Claims Act’s antiretaliation provision includes former employees.  The Tenth Circuit previously ruled otherwise.  This Note offers the following contributions: (1) this circuit split reflects a broader disagreement on the role of Robinson in interpreting antiretaliation provisions, and (2) the in pari materia rule can resolve the split, as well as provide courts a clear path to applying Robinson to antiretaliation provisions in other federal statutes.

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