New York State False Claims Act (Qui Tam)
New York State has its own False Claims Act (NYS-FCA), which prohibits false claims against the state or local government. The Act prohibits all types of fraud including fraud in health care, government construction, prisons, housing and other industries. Notably, it also prohibits tax fraud where the violator's net income or sales exceeds $1 million per year and the amount of fraud exceeds $350,000. The law covers a false claim that deprives the state or any local government of money by demanding payment from or avoiding payment to the government.
Cases are brought in court under seal and a copy of the complaint is served on the state. The state has 60 days to decide whether to intervene. Where more than 1 person files a claim in court based on the same circumstances, only the first individual to file is entitled to any monetary award. Qui tam cases cannot be based on information that is publicly available, unless the individual is the "original source" of the information.
A relator may receive up to 30% of the award if the government does not intervene in the case or 25% of the award where the government does intervene. A relator who was involved in the fraud may have his award reduced or eliminated. A relator criminally convicted in connection with the fraud must be dismissed from the suit and may not receive any award.
A relator who is retaliated against may be entitled to double back pay plus interest, reinstatement (return to the job), compensation for "special damages" and attorneys' fees and costs.
The NYS-FCA has a 6 year statute of limitations that runs from the date of the violation or 3 year statute of limitations from the time the government knew or should have known about facts material to the violation. In no event may a claim be brought more than 10 years after the violation.
New York Labor Laws §§ 740 and 741
Under New York Labor Law § 740, public and private employers cannot retaliate against employees who:
- disclose or threaten to disclose activities, policies or practices that violate laws or regulations which present a substantial and specific danger to the public health or safety or which constitute health care fraud;
- provide information to or testify before a public body that is conducting an investigation, hearing or inquiry into any violation of law, rule or regulation by the employer; or object to or refuse to participate in an activity, policy or practice that is in violation of a law, rule or regulation.
An individual is only protected from retaliation when complaining about an actual violation of law, rule or regulation. A reasonable or good faith belief that a violation has occurred is not sufficient.
New York Labor Law § 741 was passed in 2002 to prohibit retaliation against persons who "actually supply health care services" (not just coordinate with those that do) and who disclose violations of "improper quality of patient care." Improper quality of patient care is any practice, procedure, act or omission that violates a law, rule or regulation and which may cause a substantial and specific danger to public health or safety OR pose a significant threat to a specific patient. Unlike Section 740, a Section 741 claim may be established if an employee reasonably believes in good faith that the employer's conduct constitutes improper quality of patient care. An actual violation is not required.
A person may simultaneously plead claims under Sections 740 and 741, but double recovery is not available.
New York Civil Service Law § 75-b
Under certain circumstances, public employees of New York State are protected from retaliatory action resulting from their disclosure of information that is reasonably believed to be a violation of law, rule or regulation which creates and presents a substantial and specific danger to the public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper government action.
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Serrins Fisher LLP was dissolved effective September 1, 2016. Liane Fisher and Michael Taubenfeld are happy to announce their new practice, Fisher Taubenfeld LLP. To reach Alan Serrins please call (212) 384-0202.