One of two things. First, acts in furtherance of a False Claims Act case. This can include investigation, speaking with the government, or filing a lawsuit.
Second, acts to prevent False Claims Act violations. This can include refusing to participate in the fraud, internal whistleblowing, or educating others as to the illegality of the actions.
However, to trigger these protections, courts have generally held that you have to put the employer on notice that you are acting in furtherance of an FCA action or to prevent further fraud. If you were fired for snooping, and the employer has no reason to know you were investigating fraud, so you won’t be protected.
Assume you complain that the provider’s actions are putting patients at risk, that a contractor is violating the terms of its contract with the government, or that employees aren’t licensed properly. Those may be the basis for an FCA case, but you are not complaining about fraud against the government and so you are unlikely to be protected by whistleblower retaliation laws.
Only if you are protesting a False Claims Act violation, e.g., fraudulent billing, are you likely to be protected by the courts. Moreover, if it is your job to report these things (for example, if you work in compliance), then you are held to an even higher standard. You have to make extra-clear that you aren’t just disclosing a run-of-the-mill compliance violation but that this is a violation of the False Claims Act.
Courts also differ on whether there had to be an actual violation or just a “reasonable belief” that a False Claims Act violation occurred. And even then, courts differ on how they apply that reasonable belief standard.
For example, even if a whistleblower has a subjective belief that its employer is submitting false claims to the federal government, courts may differ on whether that belief is adequate based on the employee’s scope of knowledge, or whether they can apply facts unknown to the whistleblower under an objective belief standard.