Terminating the Employment Relationship

Individuals bringing suit under the California False Claims Act are informers (“qui tam” plaintiffs) and sue on behalf of themselves and the State of California. Qui tam plaintiffs may recover damages and penalties on behalf of public entities and for themselves. 60 The CFCA provides for two times the amount of back pay, special damages, costs, attorney fees, and punitive damages. 61

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d. The Federal False Claims Act The whistleblower protection provision of the federal False Claims Act (“FCA”) provides a claim in federal court for employees who are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee . . . in furtherance of an action” under the FCA. 62 A court concluded that a former employee's allegations contained sufficient facts to establish a claim for wrongful termination in violation of public policies for the federal FCA and the California FCA where the employee alleged that the medical center compromised patient care, and that she was terminated because she demanded that minimum state and federal standards of health care be maintained .63 1. O FF -D UTY C ONDUCT Federal and state laws prohibit unwarranted intrusions into an employee’s personal and private life. Termination for off-duty conduct may implicate privacy rights. Therefore, a sufficient “nexus” or connection must exist between the off-duty conduct and the employment to justify disciplinary action. 64 An employee has the burden of proving that the agency’s rule or regulation has no rational relationship with the achievement of its goals. In regard to off-duty conduct, public agency employers should be aware of California Labor Code section 96 which provides for the assignment of claims to the Labor Commissioner. Upon an employee’s filing of a claim, the Labor Commissioner “shall” take the assignment of “claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” 65 Section 96 does not describe an independent public policy that provides employees with any substantive rights. 66 The statute simply outlines types of claims over which the Labor Commissioner shall exercise jurisdiction; therefore, the statute does not support a claim of wrongful termination in violation of public policy. 67 C. T ERMINATION FOR P RIVATE C ONDUCT

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 35