An investigation conducted by the Associated Press reveals that in the past six years, more than 90 percent of Department of Defense (“DoD”) whistleblower retaliation cases have been dismissed by the Inspector General’s office. According to a study by the Associated Press, DoD investigators believe that many legitimate whistleblower claims are prematurely dismissed because of a demoralized work environment in the Military Reprisal Investigations (“MRI”) unit of the Inspector General’s office. According to a government survey conducted by the Corporate Leadership Council, only five percent of MRI personnel take whistleblower complaints seriously. The Employment Law Group® law firm is hopeful that a new administration will change the culture at DoD IG and protect DoD whistleblowers.
The Employment Law Group® law firm routinely represents DoD whistleblowers in retaliation cases. For more information about The Employment Law Group® law firm’s whistleblower practice, click here.
The U.S. Department of Labor ordered Charles Schwab to reinstate two employees who allege they were terminated for blowing the whistle on a scheme to falsify entries in a Schwab database system. OSHA investigated their claims under the whistleblower provision of the Sarbanes-Oxley Act of 2002 and is ordering Charles Schwab to reinstate the whistleblowers and award them back pay with interest, compensatory damages, attorneys’ fees and other relief.
For information on The Employment Law Group® law firm’s Sarbanes-Oxley practice, click here.
In Garcetti v. Ceballos, the Supreme Court held that whistleblowing by public employees in the course of performing their official job duties is not protected under the First Amendment as a matter of law. As a result of the Garcetti decision, many public employee whistleblower retaliation claims have been dismissed on summary judgment. In a recent decision, Posey v. Lake Pend, the Ninth Circuit held that the question of whether a public employee is speaking on matters of public concern pursuant to her official duties is a mixed question of fact and law, and therefore should be decided by the jury. This decision is significant because it increases the odds of public employee whistleblower retaliation claims surviving summary judgment where they can prove that: (1) they spoke on a matter of public concern; (2) the state lacks adequate justification for treating the plaintiff differently from other members of the general public; and (3) there is a genuine issue of material fact as to whether the employee blew the whistle outside the scope of their job responsibilities.
The Employment Law Group® law firm Principal Jason Zuckerman spoke at a National Employment Lawyers Association Conference titled “Litigating Harassment Retaliation Claims” in Chicago, Illinois. Zuckerman’s presentation addressed new whistleblowers laws and offered tips for litigating whistleblower retaliation cases.
In Melton v. Yellow Transp. Inc., the Department of Labor’s Administrative Review Board (ARB) clarified that it will apply the Burlington Northern standard to whistleblower cases when determining whether an employer violated a whistleblower retaliation protection provision. This decision is significant because under Burlington, an employment action is materially adverse if it is capable of dissuading a reasonable employee from engaging in whistleblowing activity, a broad standard focused on the chilling effect of an adverse employment action. While the concurring opinion purports to apply the Burlington Northern standard, it concluded that the issuance of a warning letter did not affect the terms of Melton’s employment and hence is not an actionable adverse action. Melton’s attorney is appealing the ARB’s decision on the ground that the warning letter had a chilling effect on Melton, i.e., it would deter Melton from engaging in further protected conduct, and therefore constitutes actionable retaliation.