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Changes to the Virginia Fraud Against Taxpayers Act as of July 1, 2012

Changes to the Virginia Fraud Against Taxpayers Act as of July 1, 2012.

A new and amended version of the Virginia Fraud Against Taxpayers Act took effect on July 1, 2012.  The changes were mostly cosmetic, but there are some interesting provisions.

For example, the much-discussed “public disclosure bar” has been amended to read as follows:

The court shall dismiss an action or claim under § 8.01-216.5unless opposed by the Commonwealth if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil or administrative hearing in which the Commonwealth or its agent is a party, in a Virginia legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, “original source” means an individual (i) who either prior to a public disclosure has voluntarily disclosed to the Commonwealth the information on which the allegations or transactions in a claim are based or (ii) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the Commonwealth before filing an action under this article.

And the anti-retaliation provisions (Va. Code 8.01-216.8) have been amended to add a three-year statute of limitations provision and clean up the older language.  Those provisions now read as follows:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, or agent on behalf of the employee, contractor, or agent or associated others in furtherance of others’ an action under this article or other efforts to stop one or more violations of this article. Relief shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney fees. Any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process. An action under this section may be brought in a court of competent jurisdiction for the relief provided in this section, but may not be brought more than three years after the date the discrimination occurred. This paragraph shall constitute a waiver of sovereign immunity and creates a cause of action by an employee against the Commonwealth if the Commonwealth is the employer responsible for the adverse employment action that would entitle the employee to the relief set forth in this paragraph.

This year, I am happy to report, the legislative process went off without a hitch…I didn’t need to drive down I-95 even one time, unlike in previous years.

Hopefully there will be some good case law coming out of a Virginia Circuit Court later this month on the topic of the anti-retaliation provisions….stay tuned!