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Job Applicants Not Protected by FCA Whistleblower Protections, Says 6th Circuit

On November 19, 2014, the Sixth Circuit affirmed dismissal of retaliation claims under the False Claims Act (FCA) and other federal statutes because the plaintiff, as a rejected job applicant, was not an “employee” as required by those statutes. In Vander Boegh v. EnergySolutions, Inc., the plaintiff was a landfill manager at a waste management contractor who, during his employment, engaged in protected activity by reporting environmental violations. When his employer’s contract ended, he applied for the same job with the successor contractor, EnergySolutions, but was denied. Vander Boegh then sued under the FCA, Energy Reorganization Act, and several environmental protection laws, alleging that his application was rejected in retaliation for his earlier whistleblowing activities. In a matter of first impression, the Sixth Circuit determined that, unlike anti-retaliation provisions in some other statutes like Title VII, the plain language of the FCA’s prohibition on retaliation against “any employee, contractor, or agent” simply does not stretch to cover job applicants.

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