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First Amendment Protection: The Start of a Comeback?

June 20th, 2014 · No Comments

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

Supreme CourtWith Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

  • Whether an employee is acting on a civic obligation to “society at large”
  • Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968′s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

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Tags: Uncategorized

CFTC Gives Whistleblower $240,000 in First Award Under Dodd-Frank

May 23rd, 2014 · No Comments

The U.S. Commodity Futures Trading Commission (CFTC) finally made a whistleblower award under its Dodd-Frank mandate, but released virtually no information about the enforcement action that led to its $240,000 payout.

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Tags: Commodities Trading Fraud · Dodd-Frank Act

Rule 345 Provides a New Shield for IRS Whistleblowers

May 23rd, 2014 · No Comments

A U.S. Tax Court judge on Tuesday allowed three whistleblowers to hide their identities in court for reasons that ranged from death threats to a fear of professional ostracism.

The rulings by Judge Diane L. Kroupa appear to be the the first decisions publicly reached under the Tax Court’s Rule 345, which in 2012 established a formal procedure for tax whistleblowers to request anonymity.

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Tags: IRS Whistleblower Reward Program · Reporting Tax Fraud · Tax fraud

Whistleblower Nurse Reaps $15 Million Reward in Amedisys Fraud Settlement

May 9th, 2014 · No Comments

The U.S. Department of Justice announced settlements with several healthcare companies accused of fraud — including a massive $150 million deal with Amedisys Inc. in which the government resolved seven lawsuits with the giant homecare provider, leading to more than $26 million in payouts to whistleblowers and a jackpot for U.S. taxpayers.

The largest whistleblower reward, more than $15 million, went to April Brown, an Alabama nurse and single mother who was fired by Amedisys after she questioned its Medicare billing practices.

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Tags: False Claims Act · Medicare/Medicaid Fraud · Stark Act · Uncategorized

MSPB: Cat’s Paw Doctrine Protects Federal Whistleblowers

April 10th, 2014 · No Comments

The Merit Systems Protection Board (MSPB) adopted the U.S. Supreme Court’s 2011 formulation of “cat’s paw” liability to find that the Transport Security Administration (TSA) acted illegally when it fired an employee who blew the whistle on lax airport security measures.

The MSPB’s decision in Aquino v. Department of Homeland Security was its first formal application of the cat’s-paw doctrine to the Whistleblower Protection Act (WPA), which forbids retaliation against whistleblowers working for the federal government. Previous board decisions had reached a similar result using a different theory; the switch should help MSPB actions to survive appeal in federal court.

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Tags: Whistleblower Protection Act

ARB Affirms Punitive Damages for Two Whistleblowers

April 3rd, 2014 · No Comments

The U.S. Department of Labor’s Administrative Review Board (ARB) affirmed judgments against two transportation companies that fired employees who had reported health and safety issues — confirming in each case that the violation was grievous enough to trigger punitive damages.

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Tags: Department of Labor ARB · Federal Rail Safety Act · Surface Transportation Assistance Act

March Whistleblower Rewards Include $500,000 in Cargo Price-Fixing Case

April 1st, 2014 · No Comments

The U.S. Department of Justice announced settlements in three large qui tam cases during March — including a price-fixing case where the whistleblower earned a half-million-dollar reward.

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Tags: Contractor Fraud · False Claims Act · Medicare/Medicaid Fraud

Supreme Court Says SOX Can Fit Almost Anyone

March 5th, 2014 · No Comments

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

Supreme CourtIn deciding Lawson v. FMR LLC, the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), the justices of the U.S. Supreme Court agreed that the law’s ambiguous anti-retaliation provision offered two alternatives, both unappealing:

  • Either it doesn’t protect a large class of whistleblowers — in many cases, the people most likely to discover financial wrongdoing;
  • Or it protects virtually anyone hired by a publicly traded company or by its employees, either directly or indirectly, and forbids reprisal for a huge range of fraud reports.

Led by Justice Ruth Bader Ginsburg, a 6-3 majority unflinchingly chose the broader interpretation, instantly giving SOX “a stunning reach,” in the words of a dumbfounded dissent by Justice Sonia Sotomayor.

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Tags: Dodd-Frank Act · Federal Whistleblower Legislation · Retaliation · Sarbanes-Oxley · The Employment Law Group, P.C. · Whistleblower Protection

First Circuit Says Title VII Offers Workers a Broad Shield

February 19th, 2014 · No Comments

A federal appeals court ruled that Title VII of the Civil Rights Act of 1964 offers employees broad protection against reprisal when they oppose workplace discrimination — even if they didn’t originally claim that an employer’s bias violated Title VII.

Saying it “cannot accept” a lower court’s dismissal of a retaliation claim by a female firefighter in Puerto Rico, the U.S. Court of Appeals for the First Circuit found no merit in the idea that Title VII covers only retaliation against complaints citing that law.

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Tags: Retaliation · Title VII of the Civil Rights Act of 1964 · Whistleblower Protection

Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

February 12th, 2014 · No Comments

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

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Tags: Federal Whistleblower Legislation · Retaliation · Title VII of the Civil Rights Act of 1964 · Whistleblower Protection

Obama Administration Asks Supreme Court to Review MacLean Decision

January 31st, 2014 · No Comments

The Obama administration asked the U.S. Supreme Court to review a lower court’s 2013 ruling that a former federal air marshal could claim he was illegally fired for leaking sensitive information to the media.

The case, MacLean v. Department of Homeland Security, raises technical — but critically important — questions about the scope of the Whistleblower Protection Act (WPA), which forbids most retaliation against federal employees who disclose suspected illegal or dangerous acts by the government.

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Tags: Federal Employees · Federal Whistleblower Legislation · Retaliation · Whistleblower Protection · Whistleblower Protection Act

The Top Ten Whistleblower Decisions of 2013: Part 1

January 14th, 2014 · No Comments

For whistleblowers and their advocates, 2013 was a whipsaw year: Big advances followed sharp letdowns in quick rotation — sometimes from the same source. (Ahem, Supreme Court and White House.)

Plus there was the Snowden sideshow. But since NSA leaker Edward Snowden was never a real whistleblower — he acted outside the law and fled the consequences — his headline-grabbing revelations taught us no useful legal lessons.

Instead, the true news of 2013 was choppy-but-clear progress toward more employee-friendly readings of federal whistleblower laws. After two years of success at the administrative level, retaliation victims started getting their day in ever-higher courts. The U.S. Supreme Court put a cherry on the trend by hearing arguments in Lawson v. FMR LLC, its first whistleblowing case under the crucial Sarbanes-Oxley Act (SOX).

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Tags: Department of Labor ARB · Dodd-Frank Act · False Claims Act · SEC Whistleblower · Securities Fraud · The Employment Law Group, P.C.

Justices Seek Middle Ground in Whistleblower Case

November 20th, 2013 · No Comments

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In oral arguments for the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), justices of the U.S. Supreme Court quickly locked onto the important issue: How to interpret SOX’s anti-retaliation provisions without gutting the law — or expanding it without limit.

Led by Justice Stephen Breyer, the hour-long discussion on November 12 — here’s the official transcript — paid scant attention to the most extreme formulations of both sides in Lawson v. FMR LLC. Instead the Court seemed to spend its time groping toward a middle ground that would mostly favor employees.

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Tags: Department of Labor ARB · Retaliation · Sarbanes-Oxley · United States Department of Labor · Whistleblower Protection

After Nassar: Title VII Retaliation Claims Are Tougher — But Still Viable

November 4th, 2013 · No Comments

This June, in a blistering dissent from the bench, Justice Ruth Bader Ginsburg decried the U.S. Supreme Court’s “misguided judgment” in University of Texas Southwestern Medical Center v. Nassar and called on Congress to restore to employees the rights stripped by a decision that “defies logic.”

A law to reverse Nassar certainly would be welcome, but it’s not the sole hope for employee advocates. True, Nassar makes it harder to prove that an employer’s action amounted to unlawful retaliation against a whistleblowing employee under Title VII of the Civil Rights Act of 1964.

But, Justice Ginsburg’s pessimism notwithstanding, it’s hardly fatal to such a claim.

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Tags: Retaliation · Title VII of the Civil Rights Act of 1964

SEC Makes Another Whistleblower Payout — This Time at Maximum 30%

October 31st, 2013 · No Comments

The U.S. Securities and Exchange Commission (SEC) announced its second whistleblower award in a month, saying it will give the maximum 30% share of penalties in an unidentified case to a tipster who helped in the enforcement action.

Coming after a huge $14 million award earlier in October, the more modest payout of more than $150,000 suggests that the SEC’s whistleblower office is systematically nailing all of its prescribed metrics: Successive announcements have emphasized payout speed (payment in August on an award made in June); payout size (the $14 million award); and, here, payout percentage.

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Tags: Dodd-Frank Act · SEC Whistleblower · Securities Fraud · Uncategorized

Federal Judge Rejects Asadi Limits on Whistleblower Protection

October 21st, 2013 · No Comments

A federal judge ruled that the Dodd-Frank Act protects whistleblowers from retaliation even if they’re punished by an employer before bringing their concerns to the Securities and Exchange Commission (SEC).

The ruling is the first explicit repudiation of July’s high-profile Asadi decision by the U.S. Court of Appeals for the Fifth Circuit, which held that Dodd-Frank starts protecting employees only after they report corporate misdeeds to the SEC.

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Tags: Dodd-Frank Act · Sarbanes-Oxley · SEC Whistleblower · Uncategorized · Whistleblower Protection

SEC Whistleblower Program Makes Its Bones With $14 Million Award

October 3rd, 2013 · No Comments

The U.S. Securities and Exchange Commission (SEC) awarded an unnamed tipster more than $14 million, obliterating all doubt about the resolve of the agency’s whistleblower program.

The SEC didn’t identify the underlying enforcement action in either its press release or a related order, but the award’s enormous size  indicates that the U.S. government may reap as much as $140 million in penalties as a result of the whistleblower’s information.

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Tags: Dodd-Frank Act · Retaliation · SEC Whistleblower · Securities Fraud

Fourth Circuit: Facebook “Like” Is Protected Speech in Retaliation Case

September 30th, 2013 · No Comments

Clicking “Like” on Facebook can be a protected activity in a workplace retaliation case, a federal appeals court said, confirming that employers must treat workers’ online behavior with the same respect as its offline equivalent.

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Tags: Retaliation

Maryland’s High Court Finalizes Verdict In “Cat’s Paw” Case

September 24th, 2013 · No Comments

DISCLAIMER: THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.

Maryland’s highest court finalized the reinstatement of a jury’s $650,000 award to Donna Jackson for her former employer’s retaliation after she reported a subordinate’s gender discrimination complaint.

By declining to review a lower court decision, the Maryland Court of Appeals also solidified the state’s adoption of “cat’s paw” liability, under which an employer may be held liable for retaliation against an employee even if the actual decision-maker was unaware of a retaliatory motive.

Ms. Jackson was represented by The Employment Law Group® law firm.

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Tags: Retaliation · The Employment Law Group, P.C.

ARB: Whistleblower Must Be Rehired — Even If Job No Longer Exists

September 23rd, 2013 · No Comments

The U.S. Department of Labor’s Administrative Review Board (ARB) ordered the Mayo Clinic to rehire a mail truck driver it had removed for whistleblowing, despite the medical group’s protest that his job no longer exists — and that giving him a different job would require a promotion.

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Tags: Department of Labor ARB · Retaliation · Surface Transportation Assistance Act

ARB: Whistleblower Can Get Back Pay Even for Time in College

September 9th, 2013 · No Comments

The U.S. Department of Labor’s Administrative Review Board (ARB) ruled that a whistleblower who was illegally forced out of his truck-driving job could claim back pay even for time he spent as a full-time college student.

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Tags: Department of Labor ARB · Retaliation · Surface Transportation Assistance Act

Judge: Whistleblower’s Removal of Internal Documents Was Protected Under SOX

August 19th, 2013 · No Comments

An administrative law judge at the U.S. Department of Labor ruled that a whistleblower’s duplication and removal of confidential information from his employer was a protected activity under the Sarbanes-Oxley Act (SOX) — and that it was neither unlawful nor a valid reason for firing, as his employer had claimed.

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Tags: Department of Labor ARB · IRS Whistleblower Reward Program · Retaliation · Sarbanes-Oxley · United States Department of Labor · Whistleblower Protection

Sides Warm Up For SOX Case at the Supreme Court

August 9th, 2013 · No Comments

Arguments are shaping up for the U.S. Supreme Court’s hearing of its first whistleblower case brought under the Sarbanes-Oxley Act (SOX): This week, employee advocates filed an amicus curiae brief for the National Employment Lawyers Association (NELA) and the Government Accountability Project (GAP).

The brief was drafted, in part, by The Employment Law Group, P.C.

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Tags: Department of Labor ARB · Sarbanes-Oxley · United States Department of Labor · Whistleblower Protection

A Day to Honor Whistleblowers?

August 1st, 2013 · No Comments

It was National Whistleblower Appreciation Day this week. How did you celebrate?

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Tags: Whistleblower Protection

Tax Court Sheds Light on Whistleblower’s Denied Award

July 26th, 2013 · No Comments

What can whistleblowers do when the IRS Whistleblower Office denies them an award for helping the government to recover money from a suspected tax cheat?

They can do what Albert G. Hill, III, did — challenge the denial in tax court.

But such challenges are difficult without access to information that the IRS used to deny the award in its often-opaque decision process. In Mr. Hill’s case, the IRS took a common — yet extreme — position on taxpayer confidentiality, refusing to allow Mr. Hill to review documents from the administrative file of the taxpayer he had targeted.

This week the U.S. Tax Court ordered the IRS to hand over the documents under strict conditions — and, in doing so, provided a sensible model for how such appeals should be handled.

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Tags: IRS Whistleblower Reward Program · Reporting Tax Fraud