On March 30, 2010, the Supreme Court issued an opinion widening the public disclosure bar to qui tam actions brought under the False Claims Act (FCA), holding that “the reference to ‘administrative’ reports, audits, and investigations” contained in the public disclosure bar of the FCA “encompasses disclosures made in state and local sources as well as federal sources.” In Graham County Soil and Water Conservation District et al v. United State ex rel. Wilson, the Court ruled that a relator could not maintain a qui tam suit when the information that her suit is based on is contained in county and state administrative reports.
Wilson filed suit in 2001, alleging that the defendants and a number of local and federal officials violated the FCA by submitting false claims under 1995 contracts which provided federal funds to aid with flood restoration. The defendants argued that no federal court has the jurisdiction to hear Wilson’s claim because 31 U.S.C. § 3730(e)(4)(A) removes jurisdiction over qui tam actions based on information publicly disclosed “in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation. . .” Examining the construction of the statute and legislative history, the court sided with the defendants, holding that the FCA’s public disclosure bar is not limited to federal disclosures.
However, the impact of this decision is minimal as the Patient Protection and Affordable Care Act of 2009, signed by President Obama on March 23, 2010, replaces 31 U.S.C. 3730(e)(4) with language clarifying that the public disclosure bar only pertains to information disclosed “(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation. . .” In addition, under the new statute, the public disclosure bar is no longer jurisdictional and the Government may object to the dismissal of a claim based upon publicly disclosed information. For more information about the impact of the Patient Protection and Affordable Care Act of 2009’s impact on whistleblowers, click here.
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The Patient Protection and Affordable Care Act of 2009 (H.R. 3590) that the House approved on March 21, 2010, creates new whistleblower protections for health care workers and strengthens the coverage of the False Claims Act. The following is a summary of these provisions and the text of the relevant sections is available here.
Section 1558: Health care worker whistleblower protections added to the Fair Labor Standards Act. Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill. The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill. Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies. Accordingly, Section 1558 will likely protect a broad range of disclosures.
The procedures, burden of proof, and remedies applicable to this new retaliation claim are set forth in the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including (1) a 180-day statute of limitations; (2) a requirement to initially file the complaint with OSHA, which will investigate the complaint and can order preliminary reinstatement; (3) the option to litigate the claim before the Department of Labor Office of Administrative Law Judges or to remove the claim to federal court 210 days after filing the complaint; (4) the right to try the claim in federal court before a jury; and (5) a broad range of remedies, including reinstatement, back pay, special damages, and attorney’s fees. Similar to Section 806 of the Sarbanes-Oxley Act, the causation standard and the burden-shifting framework are very favorable to employees.
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee engaging in protected conduct, an onerous burden.
Section 6703(b)(3): Protections for employees of federally funded long-term care facilities. Long-term care facilities that receive more than $10,000 in federal funding in the preceding year must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency. Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $200,000. A long-term care facility is prohibited from engaging in retaliation against an employee “because of lawful acts done by the employee.” Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal funds for up to two years.
Section 6105: Implementation of standardized complaint forms for nursing homes and prohibition against retaliation. Section 6105 requires nursing homes to implement a standardized complaint form and requires each state to develop a complaint resolution process to track and investigate complaints and to ensure that complainants are not subjected to retaliation.
Section 10104(j)(2) expands the definition of an “original source” under the False Claims Act. Section 10104(j)(2) strikes 31 U.S.C. 3730(e)(4)(A) and replaces it with language expanding the definition of an “original source” to include “individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) 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 Government before filing an action under this section.” This new definition of “original source” will bring much-need uniformity to this critical issue that arises in most qui tam actions and increase the likelihood that relators will be able to meet the original source exception to the public disclosure bar.
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On March 11, 2010, Administrative Law Judge Rae issued an order holding that an agreement which provides a joint employer with the ability to accept or cancel the assignment of a leased employee may be sufficient to establish liability under the Surface Transportation Assistance Act (STAA). In Myers v. AMS Staff Leasing, the respondent contracted with trucking company New Rising Fenix, Inc. to provide payroll, benefits, and human resource services. The respondent moved to dismiss, arguing that they did not exercise sufficient control over the complainants to establish liability under the STAA. In support, the respondent cited cases holding that employment leasing contract provisions required by Florida law are not sufficient to create liability under the Fair Labor Standards Act (FLSA).
Judge Rae agreed that the FLSA and STAA are sufficiently similar to exempt an employer from liability on the sole basis of statutorily mandated contact provisions. However, the respondent still failed to demonstrate that it did not have the ability to control the complainants since the joint employers’ contract provided the respondent with the discretion to cancel the assignment of certain employees.
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On March 15, 2010, Administrative Law Judge Daniel Leland awarded Cynthia Ferguson over $151,000 including $75,000 in punitive damages, holding that she was terminated in retaliation for refusing to drive in hazardous conditions. On a cross country trip, Ferguson encountered extremely inclement weather approaching Donner Pass in the Sierra Nevada Mountains. Ferguson observed a truck in a ditch and another forced to stop in the middle of the road due to black ice. She also received reports from other drivers advising her not to cross the pass until the conditions improved. Ferguson told her employer of the situation and her decision to stop driving. Her employer pressured her to continue on and later terminated her.
Judge Leland held that a reasonable person in Ferguson’s position would have concluded that the weather conditions presented a serious danger and if Ferguson had not stopped, she would have violated federal regulations prohibiting the operation of commercial motor vehicles in conditions that are likely to cause an accident or breakdown. The employer argued that it fired Ferguson for carrying a negative balance with the company.
Judge Leland acknowledged that the negative balance could be a legitimate reason to terminate Ferguson but found that comments made by Ferguson’s supervisor and the temporal proximity between Ferguson’s protected activity and termination established a mixed motive. As a result of her employer’s “total disregard not only for her and her co-driver’s safety but for the safety of other drivers on the road,” Judge Leland awarded Ferguson $75,000 in punitive damages, $50,000 for emotional distress, back pay, reinstatement, costs, and attorney’s fees. The case is Ferguson v. New Prime, Inc. and a copy of the order is available here.
For information about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.
On March 17, 2010, the Occupational Safety and Health Administration ordered Tennessee Commerce Bank to reinstate a former chief financial officer and pay more than $1 million for violations of the Sarbanes-Oxley Act. Former CFO George Fort filed a complaint with OSHA on April 4, 2008 alleging that the bank terminated him in retaliation for raising concerns about weak internal controls, potential insider trading, and meeting with state and federal regulators after the bank’s audit committee failed to address his concerns.
Finding for Mr. Fort, OSHA relied in part on emails displaying “evidence of animus and intent to retaliate” against the complainant. One email sent by a board member said that he was “in a ‘get even’ mode and…enjoying every minute of it.” OSHA ordered the bank to reinstate Mr. Fort and awarded him pay back pay and compensatory damages for medical expenses and lost benefits. Both parties have 30 days object to the order and request a hearing before the Department of Labor’s Office of Administrative Law Judges.
For more information about The Employment Law Group® law firm’s Sarbanes-Oxley Whistleblower Practice, click here.